Sitosky Update: The Latest on Probation Tolling

The continued supervision or imprisonment of hundreds of probationers and inmates is in question in light of State v. Sitosky, __ N.C. App. __, 767 S.E.2d 623 (2014), petition for discretionary review denied, __ N.C. __, 768 S.E.2d 847 (2015), and its interpretation of the probation tolling law. This post summarizes some of the latest developments related to the case. You can review the details of the Sitosky opinion in this prior post. I’ll sum it up briefly here. Defendants placed on probation before December 1, 2011 for an offense committed before December 1, 2009 are subject to probation tolling under G.S. 15A-1344(d). Tolling in that context means that you stop the clock on the person’s probation period any time he or she has a new criminal charge pending for anything other than a Class 3 misdemeanor. Time resumes running on the probation period when the new charge is resolved. When the General Assembly amended the tolling law in 2009, G.S. 15A-1344(d) was removed from the law, effective for hearings held on or after December 1, 2009. S.L. 2009-372. The result of that unfortunate choice of effect dates, in light of Sitosky, is as follows (forgive me in advance, because it is a mouthful). If you hold a probation hearing on or after December 1, 2009 for a person placed on probation before December 1, 2011 for an offense committed before December 1, 2009, you negate the effect of any tolling that applied during the life of the probation case. If [...]