
    
      Opinion issued March 16, 1983
    
    CHARLES E. MOORE vs. DEPARTMENT OF PUBLIC INSTITUTIONS
    (CC-76-127)
    
      H. John Rogers, Attorney at Law, for claimant.
    
      Henry C. Bias, Jr., Deputy Attorney General, for respondent.
   GARDEN, JUDGE:

The claimant entered a plea of guilty to an indictment charging incest, and on May 15, 1961, he was sentenced to a definite term of five years. The applicable statute, West Virginia Code §61-11-16, provides for a mandatory indefinite sentence of five to ten years. The Prosecuting Attorney and claimant’s court-appointed counsel mistakenly informed him that he could be sentenced to the definite five-year term. Upon claimant’s arrival at the West Virginia Penitentiary, his sentence was administratively changed to a five-to-ten-year sentence. By Federal Court Order entered on September 4, 1964, the claimant’s conviction was declared null and void and he was released from confinement. Claimant seeks $4,000,000.00 in damages as a result of his alleged illegal incarceration.

The respondent, in its Answer, moves to dismiss, or, in the alternative, moves for summary judgment based upon the Notice of Claim. The grounds for the Motion to Dismiss is that the claim is barred by the applicable statute of limitations. This claim was filed with the Court on October 27, 1976. As this is more than ten years from the time of the alleged wrong, the Court sustains the respondent’s Motion to Dismiss.

Claim dismissed.  