Can I Go to Jail? Understanding Misdemeanor Sentencing

Over the weekend you were charged with a misdemeanor criminal offense. One of your first questions is likely “can I go to jail?” The answer largely depends on the misdemeanor class, your prior conviction level, and the presence of any aggravating or mitigating factors.

Misdemeanor Sentencing in North Carolina is determined by North Carolina General Statute §15A-1340.23. This statute outlines a sentencing chart which determines punishment limits based on the criminal charge and the defendant’s prior conviction level. You can find the most recent chart here.

Prior Conviction Levels

To determine your prior conviction level, you must add your number of prior misdemeanor and felony convictions. For misdemeanor sentencing, you receive one point for each prior conviction.

Prior Record Level I

If this is your first criminal charge, you will be considered a level I for sentencing purposes. This means you do not have any prior convictions. As a level I, you cannot receive an Active Sentence unless you are charged with an Aggravated Class 1 Misdemeanor offense, which includes Assault on a Female, Violating a Domestic Violence Protective Order, Assault with a Deadly Weapon, or Sexual Battery.

Instead, defendants convicted of a Class 1, 2, or 3 Misdemeanor, who do not have any prior convictions, will likely receive Community Punishment.

Community Punishment means that any active sentence the Judge orders (as permitted in the sentencing chart) is suspended for a period of time, usually 12 months, while the defendant is on supervised or unsupervised probation. This means that as long as you do not violate the terms of your probation, you will not have to serve any active time for the conviction.

Prior Record Level II

If you previously have one to four prior convictions, you are considered a prior record level II. Depending on the charge, you may receive a Community Punishment, Intermediate Punishment, or an Active Sentence.

Intermediate Punishment, also known as a “split sentence,” requires you to serve part of your sentence in the county jail, while the unserved portion becomes suspended while you are on probation for the court-ordered term.

Prior Record Level III

A prior record level III means that you have previously been convicted of at least five (5) charges. There is a possibility of an Active Sentence for all misdemeanor charges if you are a prior record level III.

An Active Sentence requires imprisonment in the County Jail ranging from 1-150 days depending on the misdemeanor offense class. Any time previously served awaiting trial may count towards your active sentence.

Aggravating and Mitigating Factors

North Carolina General Statute defines factors, which may be considered in determining an aggravated or mitigated sentence. The presence of aggravating factors may increase the likelihood of you receiving active time, while the presence of mitigating factors may increase the likelihood of you receiving a reduced sentence, such as Community Punishment.

Aggravating factors can include inducing others to participate in the offense, involving a person under the age of 16 in the offense, and committing the offense while on pretrial release for another charge.

Mitigating factors include, but are not limited to, accepting responsibility for the criminal conduct, positive employment history, support system in the community, and being honorably discharged from the Armed Forces of the United States.

Other Considerations

Even though you might not be facing jail time, being convicted of any charge, even a Class 3 misdemeanor, can have serious consequences including the possibility of a probation violation, conviction on a criminal background check, and fines.

Contact an attorney at Smith Horton Law today for a free criminal consult, and see how we can help you.