When re-sentencing a defendant on remand after a habitual felon conviction has been vacated, does the defendant get credit for time served on the underlying felonies?

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When re-sentencing a defendant on remand after a habitual felon conviction has been vacated, does the defendant get credit for time served on the underlying felonies?

If the defendant has served the maximum amount of time allowed by law for the underlying felonies, are they then adjudicated to completion?

Asked on January 20, 2015 under Criminal Law, North Carolina

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

A defendant cannot be required to serve more time that authorized by law or statute.  If the defendant has already completed the sentence, then when he shows up for his sentencing hearing, he will essentially be deemed "time served."  "Time served" refers to any time he was held because of the charge he is being sentenced for.  So, if the defendant was held the entire time for that charge-- he/she would be released shortly after the sentencing hearing.  On the flip side, if a defendant had made bond for that charge, but was still being held for a separate and different offense, he/she would not get credit for the time they were in jail on a different charge, unless the state was willing to agree to give them the credit.


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