649 F.2d 296 (5th Cir. 1981), 80-7254, United States v. Whitney

Docket Nº:80-7254
Citation:649 F.2d 296
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Parthenya WHITNEY, Defendant-Appellant.
Case Date:June 29, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 296

649 F.2d 296 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,


Parthenya WHITNEY, Defendant-Appellant.

No. 80-7254

Unit B

United States Court of Appeals, Fifth Circuit

June 29, 1981

Page 297

Jay L. Strongwater, Asst. 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, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.


In this case, we held that the double jeopardy clause of the Fifth Amendment to the Constitution of the United States does not bar consideration of certain evidence in probation revocation proceedings where the same evidence has formed the basis for a previous parole revocation proceeding. While we adhere to our holding, 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The facts are adequately set out in our prior opinion, United States v. Whitney, 632 F.2d 654 (5th Cir. 1980), hereby withdrawn, and this revised opinion substituted.

The issue presented by this appeal is whether the double jeopardy clause of the fifth amendment applies to parole and probation revocation proceedings. This issue is one of first impression in this circuit. In resolving it, we rely on the Supreme Court decision in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

In Breed v. Jones, a seventeen year old was charged with the juvenile equivalent of armed robbery. In an adjudicatory hearing, the juvenile court held that the allegations in the petition were true. At a subsequent hearing, however, the juvenile court found that the defendant was unfit for treatment as a juvenile and ordered that he be prosecuted as an adult. After numerous habeas corpus petitions and appeals in both state and federal court, the United States Court of Appeals for the Ninth Circuit held that the double jeopardy clause barred the prosecution of the defendant in adult court. The Supreme Court affirmed.

In affirming the court of appeals, the Supreme Court initially noted that "(j)eopardy denotes risk that The risk to which the Clause refers is not present in proceedings that are not 'essentially criminal.' " 421 U.S. at 528, 95 S.Ct. at 1785. Realizing that the juvenile court system had been designed...

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