482 S.E.2d 797 (Va. 1997), 960327, Adkins v. Dixon

Docket Nº:960327.
Citation:482 S.E.2d 797, 253 Va. 275
Opinion Judge:[7] The opinion of the court was delivered by: Senior Justice Henry H. Whiting
Party Name:Jeffrey S. ADKINS, v. Thomas W. DIXON, Jr., et al.
Case Date:February 28, 1997
Court:Supreme Court of Virginia

Page 797

482 S.E.2d 797 (Va. 1997)

253 Va. 275

Jeffrey S. ADKINS,


Thomas W. DIXON, Jr., et al.

No. 960327.

Supreme Court of Virginia.

February 28, 1997.

Page 798

[253 Va. 276] Philip J. Walsh, Washington, DC (James F. Bromley; Bromley, Greene & Walsh, on brief), for appellant.

[253 Va. 277] D. Stan Barnhill, Roanoke (Woods, Rogers & Hazlegrove, on brief), for appellees.


WHITING, Senior Justice.

In separate attorney malpractice cases, Jeffrey Scott Adkins, a convicted felon, seeks damages from Thomas W. Dixon, Jr., his former defense counsel, and from Dixon's employer. By agreement of the parties, the trial court consolidated both cases "for all purposes."

Adkins's actions are based on multiple claims arising from Dixon's alleged negligence and breach of contract in failing to properly defend the felony charges that resulted in Adkins's convictions. The dispositive issues are (1) whether a court-appointed attorney and his employers are entitled to governmental immunity in these actions and,

Page 799

if not, (2) whether the actions can be maintained without allegations that Adkins was innocent and that Adkins's convictions were set aside in post-trial proceedings.

The consolidated cases were decided on the defendants' demurrers and special pleas. Therefore, we state as true the facts alleged in the motions for judgment and all reasonable inferences to be drawn therefrom. Covington v. Skillcorp Publishers, 247 Va. 69, 70, 439 S.E.2d 391, 391 (1994). 1

Adkins, an indigent, was arrested, incarcerated, and charged with ten felonies "all stemming from a single criminal episode" that occurred in Augusta County. 2 Thomas W. Dixon, Jr., an employee of the law firm of Richard F. McPherson, Frank L. Summers, Jr., Victor M. Santos, and Thomas P. McPherson, partners trading as Nelson, McPherson, Summers and Santos, was appointed by the court to represent Adkins.

At a preliminary hearing on December 7, 1989, the General District Court of Augusta County found sufficient cause to certify the ten charges to the circuit court for consideration. On January 22, 1990, the grand jury of Augusta County returned indictments against Adkins on the ten original charges and on six additional felony [253 Va. 278] charges arising from the same episode. No preliminary hearings had been held on these six charges.

The circuit court fixed the trial dates as May 31, 1990 for the six additional charges and June 15, 1990 for the ten original charges. Adkins, who had been incarcerated on the ten charges since his initial arrest, filed a pro se motion on May 23, 1990 to dismiss all 16 charges based upon asserted violations of the speedy trial provisions of Code § 19.2-243, which provides in pertinent part:

Where a general district court has found that there is probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from such date such probable cause was found by the district court.

Adkins claimed that his speedy trial rights would be violated by trials on May 31 and June 15, which were more than five months after his preliminary hearing. Although the six additional charges had not been considered in the preliminary hearing, Adkins contended that all sixteen charges were subject to the same five-month speedy trial limitation since they arose "from a single criminal episode." The court overruled Adkins's motion.

At jury trials commencing on the previously fixed trial dates, Adkins was found guilty of all charges and the court entered judgments on those verdicts. The jury's verdicts on the six charges recommended punishments of two life sentences plus 45 years. 3

Adkins's appeal to the Court of Appeals filed by Dixon asserted the speedy trial defense only as to the convictions arising from the ten original charges. The Court of Appeals reversed the judgments of convictions on that ground and discharged Adkins from further prosecution on those ten charges. Adkins v. Commonwealth, 13 Va.App. 519, 523, 414 S.E.2d 188, 190 (1992). Dixon's appeal to this Court raised the speedy...

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