Calculating credit for “Pre-Trial Confinement” can be a complicated process. When the accused has either been unable to secure his or her release due to financial hardships or in a matter where “NO BOND” has been set by court officials, “crediting” that time against an imposed judgment becomes an important consideration. § 15A-533. Right to pretrial release in capital and noncapital cases states,
(b) A defendant charged with a noncapital offense must have conditions of pretrial release determined, in accordance with G.S. 15A-534.
As such, a “Capital Offense”is the only type of charge where “conditions of pretrial release” do NOT need to be determined. At the same time, (c) A judge may determine in his discretion whether a defendant charged with a capital offense may be released before trial. If he determines release is warranted, the judge must authorize release of the defendant in accordance with G.S. 15A-534
North Carolina General Statutes set forth the procedure(s) for setting bonds. NCGS 15A-534
There are certain types of offenses or fact scenarios associated with offenses, by statute, where there is a “rebuttable presumption” that bond and/or conditions of release are not appropriate. In a big picture perspective, the Courts seek to determine, in a very general sense:
- Will the Accused Return to Court? AND
- Will Releasing the Accused Present a Danger to the Community. . .and possibility Present a Danger to Him/Herself.
A “rebuttable presumption” is something the Judicial Official “presumes” to be correct or otherwise appropriate; but, the Defendant (and his attorney) may attack the presumption in an effort to secure a condition or combination of conditions for release that would ensure s/he returns to face the charges AND would not present a danger to the community.
In effect, the North Carolina General Assembly directs the Court, “There is a presumption you will do or not do something. But, the accused may try to convince you to proceed otherwise.” As such, it would be the duty or the burden of the Defendant to overcome the presumption. In essence, the Defendant says, “I know normally this is what is done. Let me tell you why I’m different.”
At the same time, the Legislature also cautions for certain offenses: “Persons who are considered for bond under the provisions of subsections (d), (e), and (f) of this section may only be released by a district or superior court judge upon a finding that there is a reasonable assurance that the person will appear and release does not pose an unreasonable risk of harm to the community.” Determining “reasonable assurances” and “unreasonable risk of harm” can pose quite a difficult conundrum.
For example,
(d) There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community if a judicial official finds . . .
DRUG TRAFFICKING & HISTORY: (1) There is reasonable cause to believe that the person committed an offense involving trafficking in a controlled substance; (2) The drug trafficking offense was committed while the person was on pretrial release for another offense; and (3) The person has been previously convicted of a Class A through E felony or an offense involving trafficking in a controlled substance and not more than five years has elapsed since the date of conviction or the person’s release from prison for the offense, whichever is later.
STREET GANGS & HISTORY: (1) There is reasonable cause to believe that the person committed an offense for the benefit of, at the direction of, or in association with, any criminal street gang, as defined in G.S. 14-50.16; (2) The offense described in subdivision (1) of this subsection was committed while the person was on pretrial release for another offense; and (3) The person has been previously convicted of an offense described in G.S. 14-50.16 through G.S. 14-50.20, and not more than five years has elapsed since the date of conviction or the person’s release for the offense, whichever is later
FIREARMS & HISTORY: (1) The offense was committed while the person was on pretrial release for another felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm. (2) The person has previously been convicted of a felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm and not more than five years have elapsed since the date of conviction or the person’s release for the offense, whichever is later.
See Related: Sentencing Jail Credit Issues 06
Assuming there is indeed a Judgment, attorneys and the Courts spend a fair amount of time trying to determine what and/or how time served in jail awaiting trial is to be “credited.” Put simply, it can be a complicated and sometimes tedious process, especially in cases where there are multiple offenses, offense dates and sometimes, multi-jurisdictional charges.
Modified Transcript of “Custody and Pretrial Confinement in North Carolina” for the Hearing Impaired:
If I’m already in jail, does that count as time served?
When someone is arrested for a case and they’re in custody, and we have to assume that they’re either not able to post a bond, meaning they don’t have the money to get out or in some very serious felonies, they’re prevented or precluded from even getting out and the Court said, “I don’t care if you have ten million dollars, you’re not getting out of jail.” Those days that you have in custody or what we call pre-trial confinement are ultimately credited against any act of term.
Now, that’s a complicated way of saying, do you get credit for the time you’re in jail? Yes. Of course, now, you’re assuming that you’ve been found guilty of something and you’re assuming that you’re being held on that particular charge.
It’s not unusual for us to see people that are charged with multiple offenses, maybe a series of different cases. We see this in breaking and entering, breaking, entering, and larceny, motor vehicle, property offenses where there’ll be charges that stem from one or more incidents and maybe more than one jurisdiction.
It’s complicated. You don’t get to double up your time. If it’s used for one purpose, it can’t be used for something else but generally speaking, if you’re being held in jail and it takes a year to get something to trial, every day you spend in jail will be credited as time served.
The Court will definitely, under statute, they’re required to credit that but the Court will also consider that in meeting up any type of judgment.
Because of the level of complexity, I encourage people, give us a ring, talk to an attorney who understands serious felonies. We’re here to help.
Bill Powers
704-342-4357
https://www.carolinaattorneys.com/
bill@PowMac.com
Bill Powers has been listed in 2015 SuperLawyers North Carolina Magazine. In calendar years 2012, 2013 & 2014, SuperLawyers further included Bill in the “Top 100″ Lawyers in North Carolina. In 2013 Bill Powers was listed as “Top 25 in Charlotte” by SuperLawyers North Carolina.
For Membership Information & Criterion for Inclusion to SuperLaywers North Carolina see: https://www.avvo.com/attorneys/28208-nc-f-powers-1739178.html
Powers Law Firm PA in 2015 has been again listed as a “Best Law Firm” by U.S. NEWS & WORLD REPORT. For Member Info & Criterion for Inclusion see: hhttps://www.bestlawyers.com/firms/powers-mccartan-pllc/44550/US/
In 2015 Bill Powers has been included in Best Lawyers of America. For membership info & criterion for inclusion see: https://www.bestlawyers.com/lawyers/bill-powers/78562/
Bill Powers has also been listed in “Top 100 Criminal Defense Lawyers in North Carolina” by The National Trial Lawyers. For member info & criterion for inclusion see: https://www.thenationaltriallawyers.org/profile-view/Bill/Powers/5071/
“Top 10 Criminal Defense Attorneys in North Carolina” as listed in The National Academy of Criminal Defense Attorneys. For member info & criterion for inclusion see: https://www.national-academy.net/attorney-members/bill-powers