COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Clements and Agee 

Argued at Salem, Virginia 

REGINALD LEE ALLEN 

 OPINION BY 

v. Record No. 1134-00-3 JUDGE G. STEVEN AGEE 

 JULY 31, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Joseph R. Winston, Special Appellate Counsel 

(Public Defender Commission, on brief), for 

appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Reginald Lee Allen (the appellant) was convicted, in a 

bench trial, in the Circuit Court for the City of Danville of 

fourth offense larceny, a felony, in violation of Code 

§ 18.2-104. The appellant was sentenced to serve a term of four 

years incarceration on May 1, 2000, with a portion suspended. 

The appellant appeals his conviction, averring the circuit court 

erred in failing to dismiss his indictment. For the following 

reasons, we agree with the appellant and reverse his conviction. 

I. BACKGROUND 

 An arrest warrant was issued on October 21, 1999 against 

the appellant for a Class 1 misdemeanor, shoplifting second 
offense, by the General District Court for the City of Danville 

for the theft of a tool set from Sears & Roebuck, Co., on 

October 18, 1999. On December 14, 1999, the appellant waived 

his right to counsel, pleaded guilty and was convicted in the 

general district court for that charge: second-offense 

shoplifting. There was no plea agreement. The general district 

court sentenced the appellant to serve a term of two months 

incarceration. That same day, the appellant noted his appeal to 

the circuit court under Code § 16.1-132 for a de novo trial. On 

December 20, 1999, the appellant withdrew his appeal pursuant to 

Code § 16.1-133, only to re-file the appeal on December 21, 

1999. 

 The appellant, who was incarcerated in the Danville jail on 

other charges, testified that a bailiff escorted him to the 

general district court clerk's office on or about December 27, 

1999, so he could again withdraw his appeal. The clerk informed 

him that his court papers had already been forwarded to the 

circuit court. The appellant testified he was then escorted to 

the circuit court clerk's office on December 28, 1999, where a 

deputy clerk informed him that he could not withdraw his appeal. 

The appellant further testified that he again returned to the 

circuit court clerk's office on January 4, 2000, and a deputy 

clerk informed him again that he could not withdraw his appeal 

and showed him a yellow note attached to his papers from the 

Commonwealth's attorney. The note instructed the clerk's office 

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to not allow withdrawal of the appeal because the Commonwealth 

intended to indict the appellant. 

 A deputy circuit court clerk testified and verified the 

note from the Commonwealth's attorney, but could not confirm the 

appellant's recitation of the dates he says he appeared to 

withdraw his appeal. The appellant presented no other 

corroborating evidence. 

 On January 4, 2000, a Danville circuit court grand jury 

indicted the appellant for felonious fourth offense larceny for 

the same Sears incident that led to his misdemeanor conviction. 

On March 7, 2000, the Commonwealth moved the circuit court to 

nolle pros the appellant's misdemeanor warrant pending on appeal 

so it could proceed on the felony indictment. In opposition, 

the appellant, represented by counsel, moved the circuit court 

to dismiss the indictment. The appellant's grounds for 

dismissal were that he had withdrawn his appeal to the circuit 

court and he should not have been allowed to "re-appeal." The 

appellant argued the circuit court lacked jurisdiction once the 

first appeal was withdrawn, and the Commonwealth could not 

indict for the felony because that action would constitute twice 

placing the appellant in jeopardy for the same offense. The 

circuit court denied the appellant's motion and proceeded on the 

indictment to trial, where the appellant was convicted of the 

felony and later sentenced. 

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II. ANALYSIS 

 The appellant, on appeal, contends the circuit court erred 

in failing to dismiss the felony indictment. He contends the 

Commonwealth denied him his right to withdraw his appeal, which 

would have rendered the misdemeanor conviction final and voided 

jurisdiction in the circuit court to proceed on the felony 

charge. Therefore, he argues, the subsequent felony indictment 

and conviction violated the double jeopardy clauses of the 

constitutions of the United States and Virginia. The appellant 

also makes reference in his brief to a due process deficiency 

under Blackledge v. Perry, 417 U.S. 21 (1974), but did not note 

that issue in his assignment of error or the question presented. 

The appellant does not appear to have made a Blackledge due 

process argument in the circuit court, although the phrase "due 

process" does appear in the record. 

 The Commonwealth challenges this appeal on several grounds. 

First, the Commonwealth contends the appellant's double jeopardy 

claim fails because he did not follow the notice provisions of 

Code § 16.1-133 in withdrawing his appeal, and under the theory 

that the appeal for a trial de novo under Code § 16.1-132 was in 

effect the statutory grant of a new trial, thereby extinguishing 

the original misdemeanor conviction. The Commonwealth also 

contends the appellant's due process claim is barred by Rule 

5A:18; that is, the Commonwealth contends the appellant is 

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procedurally barred from raising that argument for the first 

time on appeal. 

 We find this case analogous to, and controlled by, our 

decision in Duck v. Commonwealth, 8 Va. App. 567, 383 S.E.2d 746 

(1989). Accordingly, we decide this case on the basis of the 

due process violation and do not address any other arguments of 

the parties.1

 In Cooper v. Commonwealth, 205 Va. 883, 140 S.E.2d 688 

(1965), the Supreme Court of Virginia established guidelines for 

appellate review of issues not raised before the circuit court: 

An appellate court may . . . take cognizance 

of errors though not assigned when they 

relate to the jurisdiction of the court over 

the subject matter, are fundamental, or when 

such review is essential to avoid grave 

injustice or prevent the denial of essential 

rights. 

Id. at 889, 140 S.E.2d at 693. The denial of due process 

involves the denial of a fundamental constitutional right and 

falls within the ambit of Rule 5A:18 to attain the ends of 

justice. We consider the issue for that reason because under 

the facts and circumstances of this case, it is evident that a 

manifest injustice has occurred. Duck, 8 Va. App. at 570-71, 

383 S.E.2d at 748. The appellant's "due process right was 

violated because the Commonwealth placed a more serious charge 

 1

 Because this case is determined by the application of due 

process principles, we do not address the Commonwealth's 

argument under Code § 16.1-133 regarding notice of withdrawal of 

an appeal. 

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against him when he appealed his conviction to the circuit 

court." Id. If the appellant had been afforded due process, he 

would not have been convicted of the felony offense. 

 In Blackledge, the defendant was tried and convicted in a 

North Carolina district court for the misdemeanor charge of 

assault with a deadly weapon. Upon his appeal to the superior 

court, where he had a right to a trial de novo, the prosecutor 

obtained an indictment charging him with the felony offense of 

assault with the intent to kill and inflict serious bodily 

injury. The Supreme Court of the United States held: 

A prosecutor clearly has a considerable 

stake in discouraging convicted 

misdemeanants from appealing and thus 

obtaining a trial de novo in the Superior 

Court, since such an appeal will clearly 

require increased expenditures of 

prosecutorial resources before the 

defendant's conviction becomes final, and 

may even result in a formerly convicted 

defendant's going free. And, if the 

prosecutor has the means readily at hand to 

discourage such appeals — by "upping the 

ante" through a felony indictment whenever a 

convicted misdemeanant pursues his statutory 

appellate remedy — the State can insure that 

only the most hardy defendants will brave 

the hazards of a de novo trial. 

* * * * * * * 

A person convicted of an offense is entitled 

to pursue his statutory right to a trial de

novo, without apprehension that the State 

will retaliate by substituting a more 

serious charge for the original one, thus 

subjecting him to a significantly increased 

potential period of incarceration. 

* * * * * * * 

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We hold, therefore, that it was not 

constitutionally permissible for the State 

to respond to [the defendant's] invocation 

of his statutory right to appeal by bringing 

a more serious charge against him prior to 

the trial de novo. 

Blackledge, 417 U.S. at 27-29 (footnotes omitted). 

 We applied Blackledge in Duck, where the defendant, Duck, 

also failed to raise the due process issue at trial. We applied 

the manifest injustice provision of Rule 5A:18 in his case for 

the same reasons as noted above. 

 Duck was originally charged, tried and convicted in general 

district court of DUI first offense. He timely noted his appeal 

to the circuit court for a trial de novo. Prior to arraignment 

in the circuit court, the warrant was amended, over Duck's 

objection, to charge DUI second offense, a more serious charge 

than the original charge upon which he had been convicted and 

was appealing. We found this course of action constitutionally 

barred as a due process violation under Blackledge. 

In the case before us, Duck was required to 

face a more serious charge in the circuit 

court as a result of exercising his 

statutory right to a trial de novo. On the 

charge of DUI (second offense), he faces a 

range of incarceration from one to twelve 

months. In contrast, in the general 

district court on the charge of DUI (first 

offense), a jail sentence was not required 

upon conviction. Also, in the district 

court, the court had the option of imposing 

a fine in lieu of a jail sentence. We find 

that this difference in penalty range made 

the charge "a more serious charge" within 

the meaning of Blackledge. 

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* * * * * * * 

[W]e find that he faced "a more serious 

charge" in the circuit court as a direct 

result of exercising his statutory right to 

a trial de novo. For this reason, his due 

process rights were violated and his 

conviction must be reversed. 

Duck, 8 Va. App. at 572-73, 383 S.E.2d at 749. 

 The appellant in the case at bar was originally charged and 

convicted on a misdemeanor shoplifting charge, for which the 

most severe penalty could not have exceeded twelve months 

incarceration with a possible fine. While exercising his 

statutory right to a trial de novo, by appeal, the appellant was 

then indicted, tried and convicted on a more serious charge 

(fourth offense larceny, a felony). The felony conviction 

carries a possible sanction of one to five years incarceration 

and is clearly a more serious charge than the original charge on 

appeal for purposes of the Blackledge analysis. 

 It is inconsequential that the appellant pled guilty, 

without any plea agreement with the Commonwealth, to the 

misdemeanor charge in the general district court while the 

defendants in Blackledge and Duck pled not guilty and were 

convicted at trial. The right to appeal for a hearing de novo

in Code § 16.1-132 is an absolute right provided to those 

convicted in general district court. 

 The Commonwealth's reliance on Easter v. Commonwealth, 31 

Va. App. 714, 525 S.E.2d 746 (2000), and Peterson v. 

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Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1991), is not 

persuasive. Both cases involved a Blackledge due process claim 

where each defendant pled guilty to a lesser-included offense 

than that with which he was originally charged in the general 

district court. Upon appeal to the circuit court, each 

defendant's original charge was reinstated, not a more serious 

charge as is the case here. Accordingly, a due process 

violation did not occur in those cases, because the defendants 

did not face a more serious charge in the circuit court than 

they first encountered in the general district court. Here, the 

appellant faced a far more serious charge in the circuit court 

than he faced in the lower court for the same criminal incident. 

 Therefore, the Commonwealth's indictment and conviction of 

the appellant for the felony offense upon his invocation of Code 

§ 16.1-132 was constitutionally impermissible as a violation of 

due process. The appellant could only be tried in the circuit 

court for the original misdemeanor, and the indictment for the 

felony offense should have been dismissed. Due process affords 

the appellant the right to a de novo hearing in the circuit 

court without having to risk an attempt by the Commonwealth to 

convict him of a more serious charge with a greater potential 

punishment, for the same criminal incident. The appellant's due 

process rights were denied, and for this reason his felony 

conviction must be reversed. 

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 Accordingly the appellant's felony conviction is reversed 

and dismissed. 

Reversed and dismissed. 

 

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