U.S. v. Whitney, 80-7254
| Citation | 632 F.2d 654 |
| Decision Date | 12 December 1980 |
| Docket Number | No. 80-7254,80-7254 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Parthenya WHITNEY, Defendant-Appellant. Summary Calendar. . Unit B |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Jay L. Strongwater, Asst. Federal Public Defender, Atlanta, Ga., for defendant-appellant.
Andrew J. Ekonomou, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before GODBOLD, KRAVITCH and HATCHETT, Circuit Judges.
This appeal presents the question whether the double jeopardy clause of the fifth amendment bars the district court from relying on specific acts of misconduct in revoking a defendant's probation where those acts formed the basis of a previous parole revocation. Because we find that the double jeopardy clause is not applicable to parole or probation revocation proceedings, we hold that the double jeopardy clause does not bar consideration of certain acts in probation revocation proceedings where those acts formed the basis of a previous parole revocation. We therefore affirm.
In May, 1975, Parthenya Whitney was convicted of three counts of interstate transportation of stolen property and conspiracy in violation of 18 U.S.C. § 2314. The trial judge imposed a sentence of five years imprisonment on count one and a like term on count two, the sentences to run concurrently. Regarding count three, the trial judge placed appellant on probation for a period of five years, to commence upon her release from confinement in counts one and two. In October, 1976, appellant was released on parole. In November, 1979, the United States Parole Commission filed a petition to revoke appellant's parole. The petition alleged that appellant violated the conditions of her parole in that she (1) failed to submit supervision reports, (2) passed bad checks, and (3) failed to report an arrest. After a hearing, the parole commission revoked appellant's parole. Finding, however, that appellant's parole term had expired, the parole commission released appellant from custody.
On the day of her release, the United States' probation office served appellant with an order to show cause why her probation should not be revoked. The revocation petition alleged violations identical to counts two and three of the parole revocation petition. At the probation revocation hearing, appellant made an oral motion to strike these grounds because they were barred by the double jeopardy clause of the fifth amendment. The trial judge denied appellant's motion after which appellant's probation was revoked.
In her appeal, appellant assigns error to the trial judge's denial of her motion. She argues that the "double-jeopardy clause of the fifth amendment prohibits the government from re-alleging specific acts of misconduct in a probation revocation hearing when there has already been a parole revocation relying on those same specific allegations." The government argues that the trial judge properly denied appellant's motion because the double-jeopardy clause is not applicable to probation or parole revocation hearings. The threshold issue in this case is whether the double jeopardy clause of the fifth amendment applies to parole or probation revocation proceedings.
The purpose of the double jeopardy clause is to ensure that a person is subject to a criminal...
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Mayner, Matter of
...two adverse consequences stem from the same act. See State v. Williams, 57 Wash.2d 231, 232, 356 P.2d 99 (1960); United States v. Whitney, 632 F.2d 654, 655-56 (5th Cir.1980). For example, misconduct while in prison can result in a denial of good time credit and may also result in additiona......
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Hardy v. US, 88-445.
...of probation in the second case, resulting in revocation, would raise serious constitutional questions. 5 The pertinent facts of the Whitney case are set forth in a previous opinion, United States v. Whitney, 632 F.2d 654 (5th Cir.1980). 6 Judge Queen ordered Hardy to commit "no further law......
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U.S. v. Whitney, 80-7254
...we add these comments in order to clarify our opinion. The facts are adequately set out in our prior opinion, United States v. Whitney, 632 F.2d 654 (5th Cir. 1980), hereby withdrawn, and this revised opinion The issue presented by this appeal is whether the double jeopardy clause of the fi......