Leslie Hermaned Green, Jr. v. Commonwealth of Virginia
779 S.E.2d 207
Va. Ct. App.2015Background
- Leslie H. Green Jr. pled guilty (Dec. 19, 2012) to indecent liberties with a child; sentenced to 5 years, with 4 years 5 months suspended and 5 years supervised probation; special conditions included no contact with victim K.R. and sex‑offender registration.
- A revocation order dated Oct. 9, 2013 found Green in violation of probation and activated 2 years 5 months of the previously suspended time; the order recited a probation officer’s report but did not specify which allegations formed the basis.
- The Sept. 30, 2013 probation report alleged three violations: failure to enroll in sex‑offender treatment, prohibited contact with K.R. (incident dated Aug. 5, 2013), and violation of sex‑offender special instructions (including alcohol prohibition).
- On May 5, 2014 Green was convicted for crimes arising from the Aug. 5, 2013 incident (indecent liberties, sexual battery, contributing to delinquency); the Dec. 31, 2014 probation report documented those convictions.
- On Jan. 7, 2015 the circuit court revoked the remaining 2 years suspended sentence based on the convictions; Green argued the court was punishing him twice for the same conduct (double jeopardy) and moved to strike.
- The circuit court denied the motion; on appeal, the Court of Appeals of Virginia affirmed, holding double jeopardy does not bar probation revocation and that Green failed to supply an adequate record to review any due‑process claim about the Oct. 2013 revocation.
Issues
| Issue | Green's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether double jeopardy barred the Jan. 2015 revocation and activation of suspended time based on the same conduct underlying subsequent convictions | Double jeopardy prevents being punished twice for the same conduct; the Jan. 2015 revocation punishes conduct already addressed in the May 2014 conviction and Oct. 2013 revocation | Double jeopardy does not apply to probation revocation; revocation enforces the original sentence and is not a second prosecution or multiple punishment for the same offense | Rejected Green’s double jeopardy claim. The Double Jeopardy Clause does not bar revocation and imprisonment upon probation violation (affirmed) |
| Whether Green was denied minimum due process because the Oct. 2013 revocation order did not specify which alleged violations supported revocation, and thus the Jan. 2015 action impermissibly re‑punished the same conduct | The Oct. 2013 order and record do not show which of the three alleged violations supported revocation; without a clear record, Green may have been deprived of required notice and protection against subsequent action for the same allegation | The Commonwealth observed multiple alleged bases for the Oct. 2013 revocation; the circuit court found the Jan. 2015 conviction changed the severity and supported activating additional suspended time | Court did not decide the substantive due‑process question on the merits because Green failed to produce an adequate record to permit review; judgment affirmed for that reason |
Key Cases Cited
- North Carolina v. Pearce, 395 U.S. 711 (defines double jeopardy protections)
- United States v. Ewell, 383 U.S. 116 (same‑offense requirement for double jeopardy analysis)
- United States v. DiFrancesco, 449 U.S. 117 (double jeopardy does not bar revocation of probation and imposition of imprisonment)
- Black v. Romano, 471 U.S. 606 (minimum procedural safeguards required in revocation hearings)
- Gagnon v. Scarpelli, 411 U.S. 778 (procedural protections for probationers and parolees)
- Grimstead v. Commonwealth, 12 Va. App. 1066 (standard for viewing evidence in revocation appeals)
- Price v. Commonwealth, 51 Va. App. 443 (probationer is not entitled to full criminal‑trial protections but is entitled to minimal due process)
- Bennefield v. Commonwealth, 21 Va. App. 729 (Virginia double jeopardy protections coextensive with federal clause)