Jackson Judge Says Hunter's Writ Improperly Filed

By Lawrence Smith/WV RECORD

RIPLEY - Because he was never incarcerated, a judge has ruled a Wirt County man sought the wrong remedy to revisit his conviction for hunting violations.

Jackson Circuit Judge Thomas C. Evans III on Jan. 23 dismissed Brian L. Enoch's petition for writ of habeas corpus.

In his writ filed Jan. 10 with the assistance of Parkersburg attorney George J. Cosenza, Enoch, 47 and of Elizabeth, sought to have his pleas to two citations issued to him last year by the state Division of Natural Resources set aside on the grounds the magistrate failed to inform him that his license would be suspended as a consequence.

However, Evans ruled Enoch's writ was improperly filed as Enochs at no time was ever in jail or sentenced to it.

According to court records, Enochs was cited by DNR Officer Dolin on two counts of hunting turkey over bait on April 19, and one count of unlawful possession of wildlife on May 19 while hunting in Stucky Hollow. On May 25, Enochs entered no contest to the charges before Magistrate Tom Reynolds.

Enochs, records show, was fined $40 and assessed $321.60 in court costs. He opted to pay them in installments over the next six months.

Later, he received a letter from DNR saying as a result of his conviction that not only was 10 points being tacked onto it, but also his license was being suspended for two years. Also, the conviction was being forwarded to other states that had reciprocal hunting agreements with West Virginia. Cosenza on Nov. 16 filed a motion to have the pleas set aside. However, on Jan. 3, the day Reynolds scheduled for a hearing, Cosenza withdrew the motion so as "to pursue the matter in circuit court."

Also, records show that same day Enochs made the final payment on the fine that was entered into the unsatisfied judgment register the month before.

In the writ, Cosenza said Enochs had defenses for the charges, but opted to pay the fines instead of hiring an attorney to contest them. Also, as an avid hunter, had he known his hunting license would be suspended, Enochs certainly would've contested the charges, Cosenza said.

Because Reynolds failed to inform Enochs of all the consequences involved by not contesting the charges, Cosenza said the pleas should be set aside. However, Enochs can't ask to have the convictions void using a writ of habeas corpus as he "is not in custody sufficient to allege a legally cognizable claim for relief in habeas corpus."

Citing both state law and prior rulings by the state Supreme Court, Evans said for a person to make a valid habeas corpus claim he or she must be "in custody."

Also, Evans added "Enoch's claim for relief in habeas corpus would also fail under the federal definition, because suspension of hunting license would not appear to amount to being 'in custody.'"

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