MISDEMEANOR SENTENCING STEPS FOR SENTENCING A MISDEMEANOR UNDER STRUCTURED SENTENCING 1. Determine the offense class 2. Determine the offender s prior conviction level 3. Select a sentence length 4. Select a sentence disposition (active, intermediate, or community) Step 1: DETERMINE THE OFFENSE CLASS Four offense classifications: Class A1 (most serious), Class 1, Class 2, and Class 3 (least serious) If a crime has neither a statutory offense classification nor a punishment specified, it is considered a Class 1 misdemeanor. G.S. 14 3(a). If a crime has no statutory offense classification but does specify a punishment, it is classified as follows under G.S. 14 3(a): Punishable by more than 6 months imprisonment: Class 1 Punishable by 31 days to 6 months imprisonment: Class 2 Punishable by 30 days or less or a fine only: Class 3 Unless another classification is expressly set out by law, the following rules apply for inchoate misdemeanors: Attempt to commit a misdemeanor: One class lower than target offense. G.S. 14 2.5. Conspiracy to commit a misdemeanor: One class lower than target offense. G.S. 14 2.4. Solicitation to commit a misdemeanor: Class 3 misdemeanor. G.S. 14 2.6. Step 2: DETERMINE THE PRIOR CONVICTION LEVEL There are three misdemeanor prior conviction levels Level I: No prior convictions Level II: 1 4 prior convictions Level III: 5 or more prior convictions The State bears the burden of proving prior convictions by a preponderance of the evidence. Prior convictions may be proved by: Stipulation of the parties; Court or DMV records; or Any other method found by the court to be reliable. G.S. 15A 1340.21(c). Prior felonies and misdemeanors count equally as prior convictions A conviction counts as a prior conviction when, on the date a judgment is entered for a subsequent offense: The defendant has been convicted of the prior offense in district court and has not given notice or appeal and the time for appeal has expired; or The defendant has been convicted in superior court, regardless of whether the conviction has been appealed to the appellate division; or The defendant has been convicted of a crime in federal court, the courts of another state, the armed services, or any other country, regardless of whether the offense is a crime in North Carolina. G.S. 15A 1340.11(7). If an offender has been convicted of more than one offense in a single session (generally, one day) of district court, only one of the convictions counts when determining prior conviction level. If an offender has been convicted of more than one offense in a single calendar week of superior court, only one of the convictions counts. G.S. 15A 1340.21(d). A prayer for judgment continued (PJC) counts as a prior conviction. State v. Canellas, 164 N.C. App. 775 (2004). Infractions, juvenile adjudications, and contempt do not count as convictions 1
Step 3: DETERMINE SENTENCE LENGTH The court may impose a sentence of imprisonment of any length within the duration specified in the appropriate cell on the sentencing grid. (If the court imposes a fine only which is may do when imposing a community punishment it is unnecessary for the court to specify a term of imprisonment.) Place of confinement for sentences imposed on or after January 1, 2012: Sentences of 90 days or less are generally to the county jail, except as provided in G.S. 148 32.1(b), which allows a transfer to another jail or, for certain sentences of at least 30 days, to the Department of Correction, when the local jail is filled to capacity. A sentence of 91 to 180 days should be to the Statewide Misdemeanant Confinement Program, through which the Sheriffs Association will find space for the inmate in a jail that has volunteered space to the program. A sentence or sentences requiring confinement for more than 180 days must be to the custody of the Department of Correction. G.S. 15A 1352. JAIL CREDIT The court must credit all pre conviction confinement resulting from the charge that culminated in the sentence. G.S. 15 196.1. The judge shall determine jail credit and cause the clerk to transmit to the custodian a statement of allowable credit. G.S. 15 196.4. The defendant cannot receive credit for time that has already been applied to a previously imposed sentence. When the defendant has credit for time spent in custody for more than one pending charge that results in imprisonment for more than one offense, credit should be applied as follows: Consecutive sentences shall be considered as one sentence and the creditable time shall not be multiplied by the number of consecutive offenses for which the defendant is imprisoned; Each concurrent sentence shall be credited with so much of the time as was spent in custody due to that charge. G.S. 15 196.2. MULTIPLE CONVICTIONS When a defendant has multiple convictions, the court may, in its discretion, run the sentences concurrently, consecutively, or, when the sentences are imposed at the same session of court, consolidate them for judgment. Concurrent sentences. Unless otherwise specified by the court, sentences run concurrently. G.S. 15A 1354. The result is that the length of imprisonment will not exceed the longest of the individual sentences. Consecutive sentences. With some limitations, the court may impose consecutive sentences for misdemeanors. If the court imposes consecutive sentences for misdemeanors the cumulative length of the sentences of imprisonment shall not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense. Consecutive sentences may not be imposed if all convictions are for Class 3 misdemeanors. G.S. 15A 1340.22. Consolidation of sentences. When an offender is convicted of more than one offense at the same session of court, the court may consolidate the offenses for judgment and impose a 2
single judgment for the consolidated offense. Any sentence imposed shall be consistent with the appropriate prior conviction level of the most serious offense. G.S. 15A 1340.22. Step 4: DETERMINE THE SENTENCE DISPOSITION There are three possible sentence dispositions: active, intermediate, and community. Permissible sentence dispositions are prescribed in each cell of the sentencing grid. A = Active If the court imposes active punishment, the defendant is incarcerated for the duration of his or her sentence of imprisonment. Active punishment exception: The court may sentence a defendant to an active sentence of time served for any time spent in confinement pending trial even though the grid cell for his or her offense class and prior conviction level does not ordinarily authorize an active sentence. G.S. 15A 1340.20(c1). I = Intermediate For offenses committed before December 1, 2011: An intermediate sentence requires that the court suspend the sentence of imprisonment and impose supervised probation that must include one of the six conditions set out in G.S. 15A 1340.11(6): Special probation (a split sentence ) Residential program Electronic house arrest Intensive supervision Day reporting center Drug treatment court For offenses committed on or after December 1, 2011: An intermediate sentence requires that the court suspend the sentence of imprisonment and impose supervised probation that may include drug treatment court, special probation, or one or more of the community and intermediate probation conditions set out in G.S. 15A 1343(a1). Intensive supervision, residential programs, and day reporting center are repealed as intermediate conditions of probation for offenses committed on or after December 1, 2011. C = Community For offenses committed before December 1, 2011: A community punishment is a non active punishment that does not include any of the six intermediate probation conditions. It may consist of unsupervised or supervised probation, or a fine only without probation. G.S. 15A 1340.11(2). For offenses committed on or after December 1, 2011: A community punishment is a non active punishment that does not include drug treatment court or special probation. It may include any of any one or more of the community and intermediate probation conditions set out in G.S. 15A 1343(a1). It may consist of unsupervised or supervised probation, or a fine only without probation. 3
CONDITIONS OF PROBATION Regular conditions of probation: Regular conditions apply by default and need not be stated aloud in open court. G.S. 15A 1343(b). Special conditions of probation: Statutory special conditions are set out in G.S. 15A 1343(b1) and may be added in the discretion of the court. Community and Intermediate probation conditions under G.S. 15A 1343(a1) [only for offenses committed on or after December 1, 2011] Electronic house arrest Community service Quick dip confinement of up to 18 days, served in 2 3 day increments, no more than 6 days per month, in three separate months Obtain a substance abuse assessment, monitoring or treatment Participation in an educational or vocational skills development program Submit to satellite based monitoring if described by G.S. 14 208.40(a)(2) (sex offenders) Intermediate conditions of probation: Ad hoc conditions of probation: The court may, in its discretion, add additional conditions that are reasonably related to the offender s rehabilitation. Special conditions for sex offenders: Certain conditions are required for offenders convicted of a reportable sex crime (e.g., misdemeanor sexual battery) or an offense that involves the physical, mental, or sexual abuse of a minor. G.S. 15A 1343(b2). Monetary conditions: Unless the court finds there are extenuating circumstances, any person placed on probation shall, as a condition of probation, be required to pay all court costs, fees, and attorney fees. G.S. 15A 1343(e). Special probation: A split sentence a term of probation that includes a period or periods of incarceration. G.S. 15A 1351(a). The maximum active portion of the split is ¼ of the sentence imposed Imprisonment may be for non continuous periods (e.g., weekends) All confinement must be complete within two years of conviction The court may order jail fees of $40 per day of split sentence confinement. G.S. 7A 313. LENGTH OF PROBATION Unless the court makes specific findings that a longer or shorter period of probation is necessary, the length of the original period of probation for a misdemeanant must fit within the following default ranges: Community punishment: Not less than 6 nor more than 18 months Intermediate punishment: Not less than 12 nor more than 24 months If the court finds at the time of sentencing that a longer period of probation is necessary, that period may not exceed a maximum of five years. G.S. 15A 1343.2(d). When a defendant is on probation for multiple convictions, the periods of probation must run concurrently. The court may, however, run a period of probation consecutively to a term of imprisonment. G.S. 15A 1346(b). FINES Under G.S. 15A 1340.23(b), a fine may be imposed in combination with any sentence disposition. Unless otherwise provided by law, the maximum fine that may be imposed is: Class 3: $200 Class 2: $1,000 Class 1 and A1: Amount in the court s discretion RESTITUTION 4
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