IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
FILED
July 10, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9606-CR-00197
Appellee, )
) SHELBY COUNTY
VS. )
) HON. BERNIE WEINMAN,
MILTON SPEARS, JR., ) JUDGE
)
Appellant. ) (Habitual motor vehicle offender)
FOR THE APPELLANT: FOR THE APPELLEE:
A C WHARTON, JR. JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
WALKER GWINN SARAH M. BRANCH
Asst. Public Defender Counsel for the State
201 Poplar, Suite 2-01 450 James Robertson Pkwy.
Memphis, TN 38103 Nashville, TN 37243-0493
(On appeal)
WILLIAM L. GIBBONS
SHERRY BROOKS District Attorney General
Asst. Public Defender
201 Poplar REGINALD HENDERSON
Memphis, TN 38103 Asst. District Attorney General
(At trial level) 201 Poplar St., Suite 301
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The Shelby County District Attorney General petitioned to have the
defendant declared an habitual offender pursuant to the Motor Vehicle Habitual
Offenders Act, T.C.A. § 55-10-601 et seq. The defendant filed a motion to dismiss on
double jeopardy grounds which the court below dismissed. Subsequently, the court
below entered a consent order declaring the defendant an habitual offender and barring
him from operating a motor vehicle in the State of Tennessee. The defendant signed this
order. He now appeals, alleging that the order violates his constitutional protections
against double jeopardy. We affirm the judgment below.
The State contends that the defendant has waived his right to appeal the
order because he agreed to it and did not reserve the double jeopardy issue as a certified
question of law. In other words, the State asserts, the consent order has the effect of a
guilty plea. We agree that the consent order is, in effect, the civil equivalent1 of a guilty
or nolo contendere plea. However, a guilty plea does not automatically constitute a
waiver of a double jeopardy claim where, judged on the face of the record, the charge is
one which the State may be constitutionally prohibited from prosecuting. Menna v. New
York, 423 U.S. 61 (1975). See also State v. Rhodes, 917 S.W.2d 708, 711 (Tenn. Crim.
App. 1995). Here, the face of the record reveals that the State is seeking to sanction the
defendant based upon several criminal offenses of which he has been previously
convicted. Under Menna, we hold that a double jeopardy claim is not waived by a
consent order under these circumstances.
1
Proceedings to declare a person to be an habitual offender under the Act are civil in nature, not
crim inal. Eve rhart v. State, 563 S.W .2d 795, 797 (Tenn. Crim. App. 1978). Appeals from these
proceedings are, however, to this Court. T.C.A. § 55-10-614.
2
Having won that battle, however, the defendant loses the war. Our
Supreme Court has previously decided that
the revocation of all driving privileges of one declared to be
an habitual offender under the Act is nothing more than the
deprivation of a privilege, is