Is a sentence of “time served” permissible?

A sentence of time served would appear to be permissible for a Class 3 misdemeanor because such a sentence imposes no additional punishment than the time already served before conviction; for an in-custody defendant, the sentence actually terminates confinement. Further, to accommodate this practice, North Carolina’s structured sentencing statutes contain an exception for time served for misdemeanors when an active punishment is not otherwise authorized, allowing imposition of a term of imprisonment “equal to or less than the total amount of time the offender has already spent committed to or in confinement . . . as a result of the charge that culminated in the sentence.” G.S. 15A-1340.20(c1).

Whether the General Assembly intended to permit a sentence of time served, however, may depend on whether such a sentence is constitutionally permissible without affording counsel to the defendant. The General Assembly adopted the new punishment scheme for Class 3 misdemeanors to reduce counsel costs. If counsel is required when the court imposes a sentence of time served, the General Assembly may not have intended to allow such a sentence.

Some decisions have found that a sentence of time served does not trigger the right to counsel. The cases have arisen in the context of whether a court may enhance a sentence for a later offense based on an earlier misdemeanor conviction in which an unrepresented defendant received a sentence of time served. The decisions found that the earlier conviction did not violate the defendant’s right to counsel and could be used for enhancement purposes. The courts reasoned that a sentence of time served does not impose a term of imprisonment as a result of an uncounseled conviction; rather, the period of incarceration served by the defendant resulted from the defendant’s inability to post bond before trial. See Glaze v. South Carolina, 621 S.E.2d 655 (S.C. 2005); Nicholson v. State, 761 So. 2d 924 (Miss. Ct. App. 2000); see also State v. Dunning, 995 So. 2d 1162 (Fl. Ct. App. 2008) (following Glaze) [subsequent decisions interpreting Florida’s state constitution may have limited the holding in Dunning].

Some decisions have reached a contrary conclusion, refusing to enhance a later offense based on a prior uncounseled conviction imposing a sentence of time served. Those decisions refuse to distinguish between a sentence of imprisonment satisfied by credit for time already served and a sentence of imprisonment to be served following conviction. See State v. O’Neill, 746 N.E.2d 654 (Ohio Ct. App. 2000); United States v. Cook, 36 F.3d 1098 (6th Cir. 1994) (unpublished).

A judge may avoid these constitutional issues by inquiring whether a defendant is willing to proceed without counsel and, if so, obtaining a waiver of counsel. A judge also could impose a nominal fine and enter judgment without using the term “time served.” Under either approach, a judge should advise an unrepresented defendant who is in custody that he or she is entitled to counsel if he or she does not enter a plea and remains in custody.