Smith v. Forsyth County Public Defender ( 2008 )

*********** The Full Commission reviewed the prior Decision and Order, based upon the record of the proceedings before Deputy Commissioner Harris and the brief before the Full Commission. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Decision and Order, except for minor modifications. *********** Based upon all of the competent evidence of record and reasonable inferences flowing therefrom, the Full Commission makes the following: FINDINGS OF FACT 1. Plaintiff filed Form T-1 Affidavits on September 20, 2005 and May 8, 2006 alleging that defendant, through the actions of public defender John K. Motsinger, essentially failed to provide him with effective counsel in a criminal case on or about February 15, 2000. Plaintiff did not file his claim until well after three years after it had accrued.

2. Plaintiff did not proffer any reasonable excuse for having waited over three years to file his claim.

3. Plaintiff refused to appear and prosecute his claims at the Motions hearing.

*********** Based upon the foregoing finding of fact, the Full Commission reaches the following: CONCLUSIONS OF LAW 1. Plaintiff's claim is barred by the three-year statute of limitations for actions under the State Tort Claims Act. N.C. Gen. Stat. § 143-299.

2. Plaintiff's claims should also be dismissed for his failure and refusal to prosecute his claims by refusing to appear at the Motions hearing. Rule 41 of the North Carolina Rules of Civil Procedure.

*********** Based upon the foregoing Findings of Fact and Conclusion of Law, the Full Commission enters the following: ORDER 1. Plaintiff's claims in I.C. No. TA-19272 and TA-19560 are each hereby DISMISSED WITH PREJUDICE.

2. No costs are assessed, as plaintiff was permitted to file this claim in forma pauperis.

This the 25^th day of July, 2008.

S/___________________

DIANNE C. SELLERS

COMMISSIONER

CONCURRING:

S/_____________ BERNADINE S. BALLANCE COMMISSIONER

S/_____________ CHRISTOPHER SCOTT COMMISSIONER