Tyree v. Hendrix
| Decision Date | 27 September 1985 |
| Docket Number | No. 83-1263,83-1263 |
| Citation | 480 So.2d 1176 |
| Parties | James Irvin TYREE v. Douglas HENDRIX. |
| Court | Alabama Supreme Court |
James Irvin Tyree, pro se.
Douglas Hendrix, Tuscaloosa, pro se.
This is an appeal from the dismissal of a complaint alleging legal malpractice. Plaintiff, James Irvin Tyree, was convicted in a criminal action in which he had been represented by defendant, Douglas Hendrix, at an early stage of the proceedings. Tyree alleges two actions by Hendrix as constituting malpractice: that Hendrix erroneously told him that the maximum sentence he could receive under the indictment was fifteen years, when in fact it was thirty; and that Hendrix failed to file a demurrer to the portion of the indictment setting out a prior conviction of possession of controlled substances.
Tyree was indicted February 5, 1982, for obtaining or attempting to obtain a controlled substance by a forged prescription "after having been previously convicted of the Unlawful Possession of Marijuana." The circuit court allowed his original attorney to withdraw on April 19 and appointed Hendrix to represent him on April 23. Also on April 23, Tyree waived arraignment and pled not guilty. Tyree asserts that Hendrix told him that the punishment for the offense charged would be not less than two nor more than fifteen years. On or about July 28, 1982, Hendrix requested permission to withdraw as attorney for Tyree. The court granted the request, and on August 5, 1982, Michael C. Cornwell was appointed to defend Tyree.
Tyree was tried before a jury and convicted on August 31, 1982. The court fixed sentence under the enhancement provision of § 20-2-76, Code 1975, at 25 years' imprisonment. Tyree appealed to the Court of Criminal Appeals, which affirmed the judgment and sentence. Tyree v. State, 439 So.2d 1346 (Ala.Crim.App.1983). This Court denied Tyree's petition for writ of certiorari. Cornwell represented Tyree throughout those proceedings.
To succeed in his claim of legal malpractice, Tyree would have to prove that Hendrix breached his duty of due care in the performance of legal services for Tyree and that such breach was the proximate cause of an injury to Tyree. Mylar v. Wilkinson, 435 So.2d 1237 (Ala.1983); Herston v. Whitesell, 374 So.2d 267 (Ala.1979). Mylar was a similar case of a convicted criminal defendant claiming malpractice against his lawyer. In that case, there had even been a finding of inadequate assistance of counsel by the U.S. Court of Appeals, yet this Court upheld the dismissal of the malpractice claim because there was no averment or indication that Mylar would have received a more favorable result in his criminal prosecution absent the alleged malpractice.
Tyree has not stated a meritorious claim against Hendrix. The facts as indicated in the record are as follows: He entered his "not guilty" plea by signing a form which included an explanation of rights. The explanation of rights informed him of the offense for which he had been indicted and stated, "If you plead guilty to said crime, or if the jury finds that you are guilty of said crime, the law provides for punishment by imprisonment in the penitentiary for not less than two nor more than fifteen years and a fine not to exceed $25,000.00 for said offense." The circuit judge's signature appears at the bottom of this explanation of rights.
Code 1975, § 20-2-70, specifies the crime of obtaining or attempting to obtain certain controlled substances by, inter alia, the forgery or alteration of a prescription, and sets out the penalties quoted in the explanation of rights. Section 20-2-76 provides that persons convicted of second or subsequent offenses under the controlled substances chapter "may be imprisoned for a term up to twice the term otherwise authorized." Tyree contends that if he had been informed of this possibility of enhancement of sentence, he might have reached a plea...
To continue reading
Request your trial
-
Harrison v. State, 4 Div. 371
...its successor provision, § 13A-12-250), in order for the defendant's sentence to be enhanced under that statute. See Tyree v. Hendrix, 480 So.2d 1176, 1178 (Ala.1985); Luker v. State, 424 So.2d 662, 664 (Ala.Cr.App.1982), both cases holding that, in order to invoke the recidivist provisions......
-
Lively v. Kilgore
...[elements] that must be proven in an ordinary negligence suit. Moseley v. Lewis & Brackin, 533 So.2d 513, 515 (Ala.1988); Tyree v. Hendrix, 480 So.2d 1176 (Ala.1985). Thus, the elements [a plaintiff] must prove in order to support his legal malpractice claim are a duty, a breach of that dut......
-
Boros v. Baxley
...[elements] that must be proven in an ordinary negligence suit. Moseley v. Lewis & Brackin, 533 So.2d 513, 515 (Ala.1988); Tyree v. Hendrix, 480 So.2d 1176 (Ala.1985). Thus, the elements [a plaintiff] must prove in order to support his legal malpractice claim are a duty, a breach of that dut......
-
Independent Stave Co., Inc. v. Bell, Richardson and Sparkman, P.A.
...[elements] that must be proven in an ordinary negligence suit. Moseley v. Lewis & Brackin, 533 So.2d 513, 515 (Ala.1988); Tyree v. Hendrix, 480 So.2d 1176 (Ala.1985). Thus, the elements [a plaintiff] must prove in order to support his legal malpractice claim are a duty, a breach of that dut......