Stay of Probation upon Appeal

When a person is convicted and sentenced, the sentence generally starts right away. G.S. 15A-1353(a). The judge can delay the start of the sentence, as discussed in this prior post, but that is the exception to the rule. About the only other thing that can put the brakes on the start of a sentence is an appeal. Today’s post discusses the rules for staying probation (including special probation) upon appeal. When a defendant appeals a misdemeanor conviction in district court, all portions of the district court judgment are stayed under G.S. 15A-1431(f1). The stay includes any active punishment imposed and any probation or special probation. That is in line with the general principle that an appeal from district court wipes the slate clean pending trial de novo in superior court. Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 341. For defendants sentenced to probation, a probation officer will track the progress of the appeal during the stay, but the officer should not be supervising the defendant. (Probation policy, §D.0409, notes that distinction.) The defendant is not on probation at that time, and thus not subject to supervision fees or any other condition of supervision. The defendant may, however, be subject to conditions of pretrial release during the pendency of the appeal. G.S. 7A-290; 15A-1431(e). If the appeal is withdrawn and the case is remanded, probation will begin when the case arrives back in district court for execution of the original judgment (or, in the case [...]