Background
Jordan Kyle Duncan was jailed for a probation violation and received a furlough to attend substance-abuse treatment. The Circuit Court of Nelson County later extended the furlough so he could enter a second treatment program. The extension order said that if Duncan left the program or failed to comply, he had to return to jail, and a failure to do so would “be deemed” an escape under Virginia Code § 18.2-479(B).
Duncan left the second program, was discharged, and did not return to jail until he was later arrested. The Commonwealth indicted him for felony escape under § 18.2-479(B). At his bench trial, Duncan argued that he was in custody for a probation violation, not a felony charge or conviction, so the felony provision did not apply. The Commonwealth did not dispute that point, but relied on the prior furlough order. The trial court convicted Duncan, reasoning that his former counsel had obtained the furlough on those terms.
The Court’s Holding
The Court of Appeals reversed and vacated the felony conviction. Section 18.2-479(B) applies only when a person escapes while confined or in custody on a felony charge or conviction. Because Duncan was jailed for a probation violation, the evidence affirmatively showed that he did not commit the charged felony offense. At most, his conduct could fall under the statute’s misdemeanor provision for escape while held for a probation or parole violation.
The court rejected the Commonwealth’s argument that the approbate-reprobate doctrine barred Duncan from contesting the felony charge because his former attorney endorsed the furlough order. That doctrine does not bind a defendant in a later, separate criminal prosecution to a legal position taken before the charged conduct occurred. Nor could the order alter the legislature’s statutory elements of felony escape or permit a conviction unsupported by proof beyond a reasonable doubt.
Key Takeaways
- A felony escape conviction requires proof that the defendant was in custody on a felony charge or conviction.
- Custody for a probation violation does not satisfy that felony-escape element.
- A furlough order cannot redefine a criminal statute or create guilt for conduct that does not meet the statute’s elements.
Why It Matters
The decision reinforces that courts and litigants cannot use agreed language in an order to expand a criminal offense beyond the elements enacted by the legislature. Even where a defendant accepts conditions for a furlough, the Commonwealth must still prove every element of any later criminal charge.