dissenting.
Respectfully, I dissent.
The “service fee of one hundred fifty dollars ($150)” provided for in KRS 189A.050 is an administrative function, and not a punishment or fine. The present holding, classifying the service fee as an additional criminal penalty which shall be imposed by the judge upon conviction, raises the same kind of problems as discussed in Commonwealth v. Steiber, Ky., 697 S.W,2d 135 (1985). In Steiber, we held that the new statute providing for court administered revocation of a defendant’s driver’s license upon conviction for driving under the influence is ministerial in nature, and not an additional punishment, and, therefore, that the jury need not be instructed that the defendant’s operator’s license will be revoked upon conviction. If the service fee in the present case is a penalty, the *319defendant should have the right to have the jury instructed that this penalty will be imposed in addition to any sentence provided by the jury.
The nature of this service fee as a cost, rather than an additional criminal penalty, is confirmed by subsection three (3) of KRS 189A.050:
“The service fee shall be utilized to fund enforcement of this chapter and for the support of jails, recordkeeping, and treatment and education programs authorized by this chapter.”
In contrast, if a criminal penalty, the service fee would be subject to KRS 431.-100, recently reenacted (see Acts 1986, ch. 336, § 8, eff. July 1, 1986). This statute provides that with certain specified exceptions which do not include the service fee in KRS 189A.050, “all fines and forfeitures imposed by law or ordinance shall inure to and vest in the Commonwealth.”
However, the fact that this service fee should be classified as a cost, and not a fine or penalty, does not mean that I think that the movant, William Beane, was entitled to relief. His affidavit under KRS 31.120 was insufficient to entitle him to relief under KRS 453.190. The former statute sets out the circumstances justifying the appointment of counsel for an indigent person and the latter statute sets out the circumstances justifying the waiver of court costs and statutory fees. KRS 453.-190(2) requires a greater degree of indigen-cy than KRS 31.120. KRS 453.190 requires proof that the defendant cannot pay “without depriving himself or his dependants of the necessities of life, including food, shelter or clothing.”
The within case should be reversed and remanded to the trial judge in District Court with directions to consider waiving costs, including the service fee, under KRS 453.190, if the defendant furnishes proof, as required by the applicable statute.
LAMBERT, J., joins in this dissent.