The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT dissents and reserves the right to file a dissenting opinion.
Per Curiam:
The petitioner Ronald A. Holcomb seeks the issuance of a writ of mandamus
ordering the Circuit Court of Mason County to dismiss fines against him that he claims are
over ten years old.
RONALD A. HOLCOMB,
Petitioner
HONORABLE DAVID W. NIBERT, JUDGE
OF THE CIRCUIT COURT OF MASON COUNTY,
Respondent
Submitted: September 4, 2002
Filed: October 18, 2002
Ronald A. Holcomb, Pro Se
Hon. David W. Nibert, Judge
Point Pleasant, West Virginia
“'The supreme court of appeals shall have original jurisdiction of proceedings
in habeas corpus, mandamus, prohibition and certiorari. The court shall have appellate
jurisdiction in civil cases at law where the matter in controversy, exclusive of interest and
costs, is of greater value or amount than three hundred dollars. . . .' W. Va. Const., art. VIII,
§ 3, in part.” Syllabus Point 4, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).
The petitioner wishes to have the following fines and costs dismissed. In
October 1988, the petitioner was charged with speeding and operating a motor vehicle
without proper registration. He failed to appear for his court date, and the magistrate court
assessed an $18.00 fine and $37.00 in costs. In 1994, the petitioner pled guilty to driving on
a suspended license, was assessed a $100.00 fine, charged $62.00 in court costs, and
sentenced to a jail term of 48 hours. In March of 1995, the petitioner pled guilty to public
intoxication, was fined $10.00, and charged $82.00 in court costs. Finally, in July of 1995,
the petitioner pled guilty to a domestic battery charge and the magistrate court assessed him
$82.00 in costs and sentenced him to a jail term of six days. None of these fines or costs
were ever paid by the petitioner.
On December 15, 2000, the petitioner, representing himself, filed a “Petition
for Relief of Fines and Cost[s]” with the Circuit Court of Mason County asking to have all
of the listed fines and court costs dismissed. After considering the petition, Circuit Court
Judge David W. Nibert entered an order on January 24, 2001, denying the petitioner's
request. The petitioner did not appeal the January 24, 2001 circuit court order to this Court.
On July 12, 2001, the petitioner filed a petition for a writ of mandamus directly
with this Court seeking to require the Mason County circuit court to dismiss the aforesaid
fines and court costs.
The petitioner is currently incarcerated for an offense other than those for
which he seeks to have assessed fines and costs dismissed.
The petitioner argues that it is unfair that his driver's license was revoked because
he was indigent. The West Virginia Division of Motor Vehicles has the authority
(See footnote 1)
to revoke
the driver's license of an individual who has failed to pay fines and court costs.
(See footnote 2)
Citing
W.Va. Code, 59-1-36 [1953],
(See footnote 3)
the petitioner argues that fines and costs that he is unable to
pay “are allowed to be dismissed.” However, W.Va. Code, 59-1-36 [1953] applies only to
the “fees and allowances mentioned in this article [W.Va. Code, 59-1-1 to 59-1-39].” W.Va.
Code, 59-1-36 [1953]. W.Va. Code, 59-1-1 to 59-1-39, generally covers the administrative
fees and costs that can be charged by different state and county entities and is not applicable
to the fines and costs from which the petitioner is seeking relief. For example, W.Va. Code,
59-1-6 [1923] defines the fees that a surveyor can charge and W.Va. Code, 59-1-7 [1923]
lists the fees that a notary public can charge. W.Va. Code, 59-1-36 [1953] does not apply to
the fines and costs assessed for criminal charges by magistrate courts.
The petitioner also cites to W.Va. Code, 61-11-9 [2002]
(See footnote 4)
in support of his petition
for a writ of mandamus. This Court has reviewed W.Va. Code, 61-11-9 [2002] and likewise
finds that this provision is inapplicable to the petitioner's request.
(See footnote 5)
Writ Denied.
Footnote: 1
(a) The division is hereby authorized to suspend the driver's
license of any person without preliminary hearing upon a
showing by its records or other sufficient evidence that the
licensee: . . .
(7) [h]as failed to pay or has defaulted on a plan for the
payment of all costs, fines, forfeitures or penalties imposed by
a magistrate court or municipal court within ninety days[.]
Footnote: 2
(a) The division shall suspend the license of any resident of this
state or the privilege of a nonresident to drive a motor vehicle
in this state upon receiving notice from a circuit court,
magistrate court or municipal court of this state . . . that such
person has defaulted on the payment of costs, fines, forfeitures,
penalties or restitution imposed on the person by the circuit
court, magistrate court or municipal court upon conviction for
any criminal offense by the date such court had required such
person to pay the same, or that such person has failed to appear
in court when charged with such an offense.
Footnote: 3
If a person shall present to the proper collecting officer such
person's written statement, certified by the chief executive
officer of a duly chartered legal aid society, that he is
pecuniarily unable to pay any of the fees and allowances
mentioned in this article, he shall be forgiven and not required
to pay such costs.
Footnote: 4
[a] prosecution for committing or procuring another person to
commit perjury shall be commenced within three years next
after the perjury was committed. A prosecution for a
misdemeanor shall be commenced within one year after the
offense was committed[.]
We note that this Code section was amended in 2002, but no substantive changes were
made that would affect this appeal.
Footnote: 5