IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JANUARY 1997 SESSION FILED
May 19, 1997
STATE OF TENNESSEE, * C.C.A. # 03C01-9607-CC-00264
Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellant, * SULLIVAN COUNTY
VS. * Hon. Frank L. Slaughter, Judge
MARSHA COLLEEN BEELER, * (State Appeal)
Appellee. *
For Appellee: For Appellant:
Burkett C. McInturff, Attorney Charles W. Burson
131 Broad Street Attorney General & Reporter
P.O. Box 583
Blountville, TN 37662 Sandy R. Copous
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Edward E. Wilson
Asst. District Attorney General
Blountville, TN 37617
OPINION FILED:_____________________
REVERSED AND REMANDED
GARY R. WADE, JUDGE
OPINION
This is an appeal of right by the State of Tennessee from an order
restoring Marsha Colleen Beeler's driving privileges. The defendant had been
previously declared a habitual motor vehicle offender. See Tenn. Code Ann. §§ 55-
10-601 to -617.
The issue presented for review is whether the trial court prematurely
reinstated driving privileges for a defendant who had been declared a habitual motor
vehicle offender. We believe that reinstatement on the date of the order was
prohibited by statute. Thus, the judgment is reversed and the cause remanded to
the trial court.
On February 22, 1993, a default judgment was entered declaring the
defendant to be a habitual motor vehicle offender. The judgment did not include the
certificate of service upon the defendant. See Rule 58, Tenn. R. Civ. P. Five days
later, an officer unsuccessfully attempted to serve a copy on the defendant. On
April 16, 1993, another officer served the defendant's mother, Glenda Beeler, with a
copy of the default judgment; the return of service indicated that Ms. Beeler had
agreed to provide the copy to the defendant. There is no indication she did so. On
February 16, 1994, the original judgment was refiled, this time containing the
required certification.
In May of 1995, the defendant was charged with several offenses. In
the first indictment, the defendant was charged with violation of the order, driving on
a revoked license, and driving on a revoked license (fifth offense). In the second
indictment, the defendant was charged with the same three offenses. The third and
fourth indictments charged additional violations of the habitual traffic offender order;
2
in the latter indictment, the defendant was also charged with aggravated perjury and
fabricating evidence when she claimed that she had been released from class on
that date to participate in a field trip.
The defendant sought a dismissal claiming that the state did not have
a valid judgment due to the lack of a certificate of service. The trial court dismissed
all four indictments on the basis that the defendant had not been personally served
with a copy of the default judgment. The state failed to timely appeal the order of
dismissal. Thus, the action is final. See Tenn. R. App. P. 4(a).
On May 6, 1996, the defendant filed a petition for the restoration of her
driving privileges. The trial court granted the petition, concluding that while the
February 22, 1993, default judgment had no validity due to its lack of certification,
the three-year statutory waiting period had nonetheless begun to run on that date.
Tenn. Code Ann. § 55-10-615(b). Because three years had passed since the
February 22, 1993, judgment, the trial court restored driving privileges.
Initially, this court should point out that actions under the Motor Vehicle
Offenders Act are civil in nature. Bankston v. State, 815 S.W.2d 213, 216 (Tenn.
Crim. App. 1991). In Bankston, this court ruled that one should mount any attack
upon the habitual offender judgment through Rule 60 of the Tennessee Rules of
Civil Procedure:
On motion and upon such terms as are just, the court
may relieve a party or the party's legal representative
from a final judgment, order or proceeding for the
following reasons: (1) mistake, inadvertence, surprise or
excusable neglect; (2) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party; (3) the judgment is
void; (4) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no
3
longer equitable that a judgment should have prospective
application; or (5) any other reason justifying relief from
the operation of the judgment.
Tenn. R. Civ. P. 60.02. The motion may be made "within a reasonable time...." Id.
The defendant did not, of course, make such an attack upon the judgment entered
in this case.
Typically, any civil judgment becomes effective when marked filed for
entry by the clerk of the trial court under any one of the three following conditions:
(1) the signatures of the judge and all parties or
counsel, or
(2) the signatures of the judge and one party or
counsel with a certificate of counsel that a copy of the
proposed order has been served on all other parties or
counsel, or
(3) the signature of the judge and a certificate of the
clerk that a copy has been served on all other parties or
counsel.
Tenn. R. Civ. P. 58 (emphasis added).
The primary purpose of the rule, of course, is to insure that all parties
to a suit are placed on notice of the results. If any one of the three segments of
Rule 58 has been met, the filing of the judgment with the clerk is the effective date
of the judgment. See Grantham v. Tennessee State Bd. of Equalization, 794
S.W.2d 751, 752 (Tenn. Ct. App. 1990).
In our view, the date of the final judgment is February 16, 1994, the
day the state filed the judgment with the requisite signatures and qualifications, thus
complying with Rule 58. In State v. Don D. Williams, No. 03C01-9404-CR-00148
(Tenn. Crim. App., at Knoxville, Jan. 13, 1995), this court ruled that the effect of
noncompliance with Rule 58 was to suspend the operation of the judgment until the
4
date of compliance. Hence the judgment declaring Williams to be a habitual
offender under the act became effective upon compliance with Rule 58.
The defendant relies upon State v. Donnie M. Jacks, No. 03C01-9108-
CR-00256 (Tenn. Crim. App., at Knoxville, Apr. 28, 1992), wherein this court
reversed a conviction for violation of the defendant's habitual motor vehicle offender
status. In Jacks, the defendant had filed a motion to set aside the default judgment
under Rule 60 of the Tennessee Rules of Civil Procedure due to a failure on the part
of the state to comply with Rule 58.02 of the Rules of Civil Procedure. In that case,
the state did not show that there had been a certification by the court clerk or
counsel for the state indicating that a copy of the judgment had been served on the
defendant. As a result of the omission, the judgment was deemed ineffective; thus,
the defendant could not be found criminally responsible for violating the terms of the
judgment. The difference in this case, of course, was that here the state had
complied with the terms of Rule 58 by the re-entry of the order in proper form on
February 16, 1994. So the habitual offender order was in effect at all times
thereafter.
As applied to these circumstances, the refiling of the judgment on
February 16, 1994, placed the defendant on habitual offender status. By the terms
of the statute, the defendant could not apply for a license for three years thereafter.
Tenn. Code Ann. § 55-10-615(b). On May 6, 1996, the defendant did not qualify for
reinstatement of driving privileges. The judgment must, therefore, be reversed.
The state also asks that this court declare that the trial court erred in
the dismissal of the four indictments on September 12, 1995. While there may have
been error in that case, there was no appeal by the state. Their time to do so has
5
expired. See Tenn. R. App. P. 4(a). The order of dismissal has become final. In
consequence, this court may not address the issue.
Accordingly, the judgment is reversed on the basis that the defendant
was not entitled to be granted driving privileges. This cause is remanded to the trial
court for further proceedings consistent with this opinion.
__________________________________
Gary R. Wade, Judge
CONCUR:
______________________________
William M. Barker, Judge
_______________________________
Curwood Witt, Judge
6