May 26, 2016 Top Story

Actual Innocence Unnecessary for Legal Malpractice Claim

Malpractice involving illegal sentence only requires post-judgment relief

Caitlin Haney

An attorney is subject to legal malpractice if she does not catch an erroneous journal entry of sentencing resulting in her client serving more time in prison than his original sentence. For a viable malpractice claim against their defense attorney, defendants need not prove they were innocent of a crime for which a court imposed an illegal sentence. Rather, criminal defendants need only prove they could get post-sentencing relief from the illegal sentence, according to the Kansas Supreme Court.

Imposition of an Illegal Sentence

In Garcia vBall, the criminal defendant hired a criminal defense attorney to represent him in a probation revocation proceeding in Kansas District Court. An incorrect journal entry of sentencing resulted in the criminal defendant serving more time in prison than his original sentence. The defense attorney had approved the journal entry.

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