Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J. 1
RANDOLPH TAYLOR
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 020923 February 28, 2003
RICHARD A. DAVIS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Donald H. Kent, Judge Designate
In this appeal, we consider whether a plaintiff in an
attorney malpractice action pled a cause of action against his
former criminal defense attorneys who represented him in
criminal proceedings.
Plaintiff, Randolph Taylor, filed his motion for judgment
against Richard A. Davis and Althea B. Hurt. Plaintiff
alleged the following facts in his motion. On July 4, 1997,
plaintiff "was arrested [in Albemarle County] and charged with
a violation of [Code] § 46.2-301, driving a moped on a
suspended license, a class 1 misdemeanor" even though a moped
is "specifically exempted from the statute, [Code] § 46.2-301;
thus driving a moped on a suspended license was not a crime in
Virginia."
The Circuit Court of Albemarle County appointed defendant
Davis to represent plaintiff for that purported offense.
Plaintiff alleged that he advised defendant Davis that
1
Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date
plaintiff was lawfully permitted to drive a moped even though
plaintiff's license had been suspended. Plaintiff also
alleged that Davis did not perform "any legal research on the
issue, and failed to raise any defense to the criminal charge,
including the statutory exemption." 2
At the conclusion of a bench trial, the circuit court
found plaintiff guilty as charged in the summons. The court
entered an order dated May 18, 1998 that sentenced plaintiff
to confinement in jail for a term of 60 days and ordered him
to pay a fine in the amount of $100 and court costs.
Plaintiff's license to operate a motor vehicle on the public
highways of this Commonwealth was suspended for a term of six
months.
The Circuit Court of Albemarle County appointed Althea
Hurt to represent plaintiff in the event he decided to appeal
the judgment. Plaintiff alleged in his motion for judgment
that he contacted Hurt "to discuss his appeal and his
understanding of the moped exemption contained in [Code]
of his retirement on January 31, 2003.
2
Code § 46.2-301(B) states in relevant part:
"Except as provided in §§ 46.2-304 and 46.2-357, no
resident or nonresident (i) whose driver's license . . . has
been suspended . . . shall thereafter drive any motor vehicle
or any self-propelled machinery or equipment on any highway in
the Commonwealth until the period of such suspension or
revocation has terminated. . . . For the purposes of this
section, the phrase 'motor vehicle or any self-propelled
machinery or equipment' shall not include mopeds."
2
§ 46.2-301." Plaintiff further alleged that despite his
representations to Hurt that he was legally permitted to drive
a moped even though his driver's license had been suspended,
Hurt advised plaintiff that he was incorrect, that he had no
appealable issue, and "that there was no need to appeal."
Plaintiff alleged that Hurt did not perform "any legal
research on the issue" and that he "acceded to . . . Hurt's
advice."
Subsequently, plaintiff filed a "motion to reopen and
dismiss" in the Circuit Court of Albemarle County. Plaintiff
asserted in his motion that he was wrongfully convicted of a
violation of Code § 46.2-301 because, pursuant to Code § 46.2-
301(B), the phrase "motor vehicle or any self-propelled
machinery or equipment" did not include mopeds. He asserted
that, therefore, he was permitted by statute to drive a moped
even though his license had been suspended. The
Commonwealth's attorney endorsed the plaintiff's motion.
The Circuit Court of Albemarle County entered an order
that "reopened" the case and dismissed "the criminal charge
upon which [plaintiff] was convicted." The court directed the
clerk "to take appropriate steps to correct the public records
regarding this dismissal and to refund to . . . Taylor, all
fines and court costs heretofore paid. Furthermore, Mr.
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Taylor's privilege to drive taken by this Court pursuant to
the original conviction is void ab initio."
Plaintiff also alleged that as a result of the
defendants' negligent acts and omissions, he sustained a
wrongful conviction, incarceration, monetary losses, and other
damages.
The defendants filed demurrers and asserted, among other
things, that plaintiff failed to plead a cause of action for
attorney malpractice because he failed to allege that he
obtained post-conviction relief as required by this Court's
decision in Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797,
cert. denied, 522 U.S. 937 (1997). The circuit court entered
an order that held that plaintiff could not proceed because he
failed to plead that he had obtained post-conviction relief.
Plaintiff appeals.
In Adkins, we considered whether a plaintiff, in an
attorney malpractice case, who had been convicted of numerous
felonies, was required to plead in his motion for judgment
that he had successfully obtained post-conviction relief. At
a preliminary hearing during the underlying criminal
proceedings, the general district court found sufficient cause
to certify ten felony charges relating to Jeffrey S. Adkins'
alleged commissions of armed robberies, abductions, unlawful
wearing of a mask, and sexual offenses. Subsequently, a grand
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jury returned indictments against him on the ten original
charges and on six additional felony charges arising from the
same incident.
The circuit court fixed the trial dates for Adkins, who
had been incarcerated on the ten original charges since his
arrest. Adkins filed a pro se motion to dismiss all 16
charges based upon asserted violations of the speedy trial
provisions of Code § 19.2-243. The circuit court denied
Adkins' motion and, at separate jury trials, he was convicted
of all charges and subsequently sentenced to punishments of
two life sentences plus 45 years.
Adkins' counsel filed an appeal to the Court of Appeals
and asserted speedy trial violations limited to the
convictions resulting from the ten original charges. The
Court of Appeals agreed with Adkins, reversed the judgments of
convictions, and discharged him from further prosecution of
those ten charges. Adkins' counsel appealed to this Court and
raised the speedy trial defense to the six additional charges
for the first time, and we denied the appeal for that reason.
Subsequently, Adkins filed a motion for judgment against
his criminal defense counsel alleging attorney malpractice.
The defendant asserted that Adkins failed to plead viable
causes of action against him because Adkins did not plead that
he was innocent of the charges that resulted in his
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convictions and he failed to plead that he secured reversals
of his convictions in post-trial proceedings.
We pointed out in Adkins that most jurisdictions have
held "that a decision adverse to a criminal defendant in post-
conviction proceedings bars a recovery for the defense
attorney's malpractice." 253 Va. at 281, 482 S.E.2d at 801.
We noted that "courts will not assist the participant in an
illegal act who seeks to profit from the act's commission."
Id. (quoting Zysk v. Zysk, 239 Va. 32, 34, 404 S.E.2d 721, 722
(1990)). We concluded that a post-conviction ruling adverse
to the defendant barred any recovery for legal malpractice.
Adkins, 253 Va. at 281-82, 482 S.E.2d at 801. We also stated
that "we think that a plaintiff in a case like the present
should have the burden of alleging and proving as a part of
his cause of action that he has obtained post-conviction
relief." Id. at 282, 482 S.E.2d at 801. We also concluded in
Adkins that the plaintiff in that case was required to plead
that he was actually innocent, and we held that his guilt, not
counsel's alleged failure to assert the speedy trial defense,
was the proximate cause of his convictions. Id. at 282, 482
S.E.2d at 802.
Our decision in Adkins, however, is not controlling in
the present appeal, which is clearly distinguishable. Unlike
the plaintiff in Adkins, the plaintiff in the present case was
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not guilty of a legally cognizable offense. Plaintiff in this
case, unlike the plaintiff in Adkins, pled that he was
incarcerated upon a purported conviction of acts that did not
constitute a crime. And, unlike the plaintiff in Adkins,
plaintiff in this appeal did not participate in an illegal act
and, therefore, if he is able to recover judgments against his
former attorneys, he will not profit from the commission of an
illegal act.
We hold that when, as here, a plaintiff in an attorney
malpractice action against his former criminal defense
attorneys makes allegations in his motion for judgment which,
if true, establish that the plaintiff is actually innocent as
a matter of law because the purported offense for which he was
convicted did not constitute a crime at the time the plaintiff
was charged, and the plaintiff was unable to establish actual
innocence because of his attorneys' negligence, the plaintiff
is not required to plead that he sought and obtained post-
conviction relief.
Accordingly, we will reverse the judgment of the circuit
court, and we will remand this case for further proceedings
consistent with this opinion.
Reversed and remanded.
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