There Is a Tolling Donut Hole

Last year, I wrote this post asking whether the probation tolling law in former G.S. 15A-1344(d) survived a 2009 statutory change. In State v. Sitosky, decided on the last day of 2014, the court of appeals held that it does not. In the probation context, tolling means (or, rather, meant) that time stopped running on a person’s probation period when he or she had pending charges for a new offense that could result in revocation upon conviction. From the late 1970’s until 2009, North Carolina’s tolling law was set out in G.S. 15A-1344(d). In 2009, the tolling law was moved from G.S. 15A-1344(d) to new G.S. 15A-1344(g), and modified to provide that if the charge that tolled a person’s probation was acquitted or dismissed, the person would receive credit for the time spent under supervision during the tolled period. In 2011, the tolling law was repealed. Based on that recent history, I used to say that there were probably three categories of probationers when it came to tolling: (1) those placed on probation on or after December 1, 2011, for whom there is no tolling; (2) those placed on probation before December 1, 2011, for an offense committed on or after December 1, 2009, who are subject to “credit-back” tolling under G.S. 15A-1344(g); and (3) those placed on probation before December 1, 2011, for an offense committed before December 1, 2009, who are still subject to the original tolling law under G.S. 15A-1344(d). Crystal Sitosky fell—at least in part—in the third category. [...]