‘Actual Innocence’ Writ Granted in DUI Case 
By Deborah Elkins
Published: November 7, 2012
Tags: Criminal, Justice Charles S. Russell, Supreme Court of Virginia
The Supreme Court of Virginia grants a writ of actual innocence to a defendant convicted of felony third offense DUI, holding that an equally divided Court of Appeals, sitting en banc, may not reverse a judgment previously entered by a panel of that court. Defendant Donald Joseph Conley contended he was innocent of the felony [...]
No Comp Bar for Navy Seaman’s Claim
By Deborah Elkins
Published: November 6, 2012
Tags: Justice Charles S. Russell, Supreme Court of Virginia, Workers' Comp
An enlisted seaman, who was part of a Navy crew to pre-commission a nuclear submarine built by defendant shipbuilding company and who allegedly contracted mesothelioma from asbestos exposure, is not barred by the Virginia Workers’ Compensation Act from pursuing a negligence action against the shipyard, the Supreme Court of Virginia says. The comp bar’s exclusivity [...]
Post-Sentence Habeas Reversed
By Deborah Elkins
Published: September 24, 2012
Tags: Criminal, Justice Charles S. Russell, Supreme Court of Virginia
In the commonwealth’s appeal following remand for an evidentiary hearing on defendant’s claim of ineffective assistance of counsel in failing to allege specific grounds for withdrawing his guilty plea after sentencing, the Supreme Court of Virginia again reverses the trial court for applying the wrong standard and dismisses the writ: Virginia Code § 19.2-296 provides [...]
Survival Action Proceeds in Med-Mal Case
By Deborah Elkins
Published: September 24, 2012
Tags: Justice Charles S. Russell, Medical Malpractice, Supreme Court of Virginia
A widow’s survival action for medical malpractice against Virginia Surgical Associates P.C. (VSA) is saved by the tolling provisions of Va. Code § 8.01-229(E)(3), the Supreme Court of Virginia says; her survival action arises out of the same cause of action for malpractice as her timely nonsuited wrongful death action, extending the limitations period six [...]
Order, Then Petition for Gun Rights Restoration
By Deborah Elkins
Published: September 24, 2012
Tags: Criminal, Justice Charles S. Russell, Supreme Court of Virginia
A convicted felon who seeks restoration of his gun rights must first obtain an order from the governor removing his political disabilities as a condition precedent to his right to petition the circuit court for restoration of his firearm rights; the Supreme Court of Virginia says firearm rights may only be restored to a convicted [...]
‘Gang Member’ Conviction Reversed
By Deborah Elkins
Published: June 18, 2012
Tags: Criminal, Justice Charles S. Russell, Supreme Court of Virginia
The Virginia Supreme Court reverses defendant’s conviction of criminal street gang participation in violation of Va. Code § 18.2-46.2(A), for their crime of breaking into the home of an elderly gentleman and shooting him; their other related convictions are unaffected by this decision. At trial, a detective who qualified as an expert on gangs, testified [...]
Email was ‘disgusting’ but was not ‘obscene’
By Peter Vieth
Published: June 15, 2012
Tags: Criminal, Judge Edward W. Hanson Jr., Justice Charles S. Russell, Justice Donald W. Lemons, Justice LeRoy F. Millette Jr., Justice S. Bernard Goodwyn, Supreme Court of Virginia News
An angry doctor’s “disgusting” emails to his ex-wife were not “obscene” under a Virginia criminal law and his conviction for harassment by computer has been overturned by the Supreme Court of Virginia. Where a Court of Appeals majority rejected a narrow interpretation of “obscenity” and embraced instead a broader dictionary definition, the Supreme Court insisted [...]
Short-Term Job Yields ‘Average Wage’
By Deborah Elkins
Published: May 15, 2012
Tags: Justice Charles S. Russell, Supreme Court of Virginia, Workers’ Comp
A man who worked regularly installing residential porch railings, but who accepted a short-term job to complete the roof and siding on an industrial building, will have his average weekly wage set at $48.08, based on the $2,500 pay rate for the short-term job; the Supreme Court of Virginia affirms a decision awarding death benefits [...]
Appeals Court Can Decide ‘Actual Innocence’
By Deborah Elkins
Published: January 19, 2012
Tags: Criminal, Justice Charles S. Russell, Supreme Court of Virginia
In reviewing this petition for a writ of actual innocence based on non-biological evidence, the Court of Appeals did not abuse its discretion by making evidentiary findings and dismissing the petition without first referring the case to the circuit court for an evidentiary hearing, and the Supreme Court of Virginia affirms the dismissal of this [...]
ID Request Was Consensual Encounter
By Deborah Elkins
Published: January 18, 2012
Tags: Justice Charles S. Russell, Search & Seizure, Supreme Court of Virginia
A deputy’s initial encounter with a man sitting in his vehicle in a rural driveway where police went to serve felony warrants and request for the man’s license was a consensual encounter and police did not violate defendant’s Fourth Amendment rights when they found cocaine in defendant’s pocket after he consented to a search of [...]
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