IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
April 7, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9708-CR-00354
)
) Carter County
v. )
) Honorable Lynn W . Brown, Judge
)
CHRISTOPHER G. LAMBERT, ) (Certified question of law)
)
Appellant. )
For the Appellant: For the Appellee:
David F. Bautista John Knox Walkup
District Public Defender Attorney General of Tennessee
142 E. Market Street and
P.O. Box 996 Elizabeth B. Marney
Johnson City, TN 37605 Assistant Attorney General of Tennessee
(AT TRIAL & ON APPEAL) 450 James Robertson Parkway
Nashville, TN 37243-0493
Robert Oaks
Assistant Public Defender David E. Crockett
Courthouse District Attorney General
Elizabethton, TN 37643 Route 19, Box 99
(AT TRIAL) Johnson City, TN 37601
Kenneth Baldwin
Assistant District Attorney General
900 E. Elk Avenue
Elizabethton, TN 37643
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Christopher G. Lambert, appeals as of right from the
Carter County Criminal Court upon a certified question of law that is dispositive of the
cases involved. The defendant entered pleas of guilty to driving under the influence
(DUI), third offense, and three charges of driving in violation of an Habitual Motor
Vehicle Offender (HMVO) judgment that barred him from driving. He received an
effective sentence of three years in a community corrections program, including time
served of two hundred eight days, and was fined $1,130. The issue presented in the
order of certification is:
Whether the court erred in failing to set aside the
defendant’s status as an Habitual Motor Offender and likewise
erred by failing to dismiss the counts of the indictment charging
the defendant with driving while classified as an Habitual Motor
Offender.
The trial court is affirmed.
The gist of the defendant’s complaint in the trial court related to the fact
that at the times he was served with the petition to declare him an habitual offender and
the Carter County hearing was held, he was in jail in Washington County. He
contended that the Washington County jailers would not transport him and that he is
entitled to have the judgment set aside as void or unfair under Rule 60.02, Tenn. R.
Civ. P. He acknowledged, though, that he had five prior DUI convictions and would be
subject to HMVO status at the hearing. Also, he indicated that he did not try to contact
anyone in Carter County about the problem and that he did nothing about the situation
once he got out of jail. The next action anyone took on his behalf occurred in February
1997, when counsel in the present case filed the motion that is in issue.
The trial court concluded that the defendant’s claim related to the HMVO
judgment being voidable, but not void. It also found that the defendant waited
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approximately a year and nine months before filing his motion without any just cause for
the delay. It stated that no defense to the HMVO action existed under the proof. It
concluded that no relief was warranted under Rule 60.02.
We agree with the trial court’s findings and conclusions. A motion for
relief under Rule 60.02, Tenn. R. Civ. P., for any reason that might otherwise justify
relief is contingent upon the motion being filed within a reasonable time. It is obvious
that the trial court concluded that there was unjustifiable delay and no just reason to set
the judgment aside under the circumstances. It was within the trial court’s discretion to
deny relief. See Day v. Day, 931 S.W.2d 936, 939-40 (Tenn. Ct. App. 1996). The
record sufficiently supports the trial court’s decision.
In this appeal, the defendant raises for the first time that the record fails to
show that he was served with the default judgment, and he claims that the judgment
was not effective against him. See, e.g., State v. Robert Edward Boling, No. 03C01-
9511-CC-00347, Sullivan County (Tenn. Crim. App. Apr. 3, 1997); see also Tenn. R.
Civ. P. 58. However, the defendant cannot litigate one ground at trial, then assert
another ground on appeal. See, e.g., State v. Miller, 668 S.W.2d 281, 285 (Tenn.
1984); State v. Woods, 806 S.W.2d 205, 210 (Tenn. Crim. App. 1990). The claim now
raised by the defendant was not litigated in the trial court, and the state was given no
opportunity to address it. In any event, though, we believe that the judgment is facially
valid, including showing substantial compliance with Rule 58(2), Tenn. R. Civ. P.,
regarding entry of an effective judgment by including the trial court’s and state’s
counsel’s signatures and counsel’s certification of service of the judgment on the
defendant through the United States Mail.
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In consideration of the foregoing and the record as a whole, the
judgments of conviction are affirmed.
____________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________
Gary R. Wade, Judge
_________________________
William M. Barker, Judge
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