Noncontinuous Active Sentences

The court of appeals issued its decision yesterday in a case called State v. Miller. It answers a question I get asked a lot: Can an active sentence be served in noncontinous periods? The answer: No, it can’t—at least not as a true active sentence. In Miller, the defendant received a 30-day suspended sentence in district court. The defendant violated his probation, prompting the district court to enter a modification order requiring 30 days of special probation confinement (a 30-day split) to be served on 15 consecutive weekends as an intermediate sanction. (I’ll address the propriety of this condition in a minute.) The modification order said probation would be terminated “upon completion of the active sentence.” Mr. Miller apparently served those weekends for two or three months but then violated his probation again. This time, the district court entered a judgment and commitment upon revocation of probation, activating Miller’s 30-day sentence (with credit for 16 days—time that had presumably been served over eight weekends as part of his 30-day “split”). Miller appealed the revocation to the superior court, which likewise concluded that he had violated probation and activated his 30-day sentence. At the superior court hearing, Miller asked the court to order that the activated sentence be served in non-continuous periods, from Monday evening to Wednesday evening each week. The trial court refused, saying that it lacked statutory authority to do so—notwithstanding defense counsel’s argument that it “happens all the time in district court.” Miller appealed to the court of appeals, [...]