The Split Is Part of the Probation

Probation that includes incarceration is “special probation.” But it’s still probation. If a defendant falls in a cell on the sentencing grid (felony or misdemeanor) that allows for intermediate punishment, he or she may be sentenced to special probation—better known as a split sentence. Recently, I have seen or heard about situations in which the court conceives of the active portion of the split as something separate from the probation itself. That is, the court will order the defendant to complete some term of confinement (up to one-fourth the maximum imposed sentence in a Structured Sentencing case, or up to one-fourth of the maximum penalty allowed by law for a DWI), and then order a period of probation to begin at the expiration of that confinement. In my opinion an order like that misunderstands the nature of a split sentence. The confinement is part of the probation, not a precursor to it. Several statutes make that clear. First, the confinement is a condition of probation. G.S. 15A-1343(b1)(3) (“Submit to imprisonment required for special probation under G.S. 15A-1351(a) or G.S. 15A-1344(e).”). Imposing that condition also automatically triggers the regular condition of probation that a person “obey the rules and regulations of the Division of Adult Correction of the Department of Public Safety governing the conduct of inmates while imprisoned and report to a probation officer in the State of North Carolina within 72 hours of his discharge from the active term of imprisonment.” G.S. 15A-1343(b). (That condition, by the way, applies to [...]