concurring.
I agree with the view expressed in the majority opinion that the judgment of the trial court should be affirmed. I further agree with the suggested procedure to be followed to set aside a civil judgment that a person is an habitual traffic offender.
On the other hand, I would hold that counsel for defendant in the criminal court trial on the charge of violating an habitual traffic offender order was not ineffective for reason other than that stated by the majority.
An erroneous order entered by a court having jurisdiction over the subject matter is a valid order until set aside, and the appellant’s violation of it would be punishable until the order is in fact set aside.
In State v. David A. Barr, No. 901, 1990 WL 151634 (Tenn.Crim.App., Knoxville, October 12, 1990), a different panel of this court also held that remedies of the post-conviction procedure act are not available to attack the civil judgment provided for by the Motor Vehicle Habitual Offenders Act. That panel further stated:
Moreover, even if this issue was properly litigable in a post-conviction proceeding, the appellant would not be entitled to relief. Any order, even an erroneous one, if entered by a court that has jurisdiction of the subject matter, is a valid order until it is set aside, and one may not disregard it with impunity. State v. Jones, 726 S.W.2d 515 (Tenn.1987); Vanvabry v. Staton, 88 Tenn. 334, 12 S.W. 786 (1890); Aladdin Industries, Inc. v. Associated Transport, Inc., 45 Tenn.App. 329, 323 S.W.2d 222 (1958); Churchwell v. Callens, 36 Tenn.App. 119, 252 S.W.2d 131 (1952).
In short, at the time the order was entered, and at the time of the appellant’s violation of it, the order was valid and thus, his violation of it was and is properly punishable.
Thus, trial counsel in the criminal proceeding would not be ineffective if defendant violated an habitual traffic offender order which was not void on its face by failing to attack the civil order either directly by post-conviction petition or by the procedure set out in the majority opinion.1 Trial counsel would not be outside the range of competence required of lawyers as this standard is correctly stated in the majority opinion if the order in question could not have been attacked after it was violated.
In other words, a person who has been declared to be an habitual traffic offender must obtain relief from such order by availing himself of the remedy suggested in the majority opinion before he violates the otherwise valid order.
Analogy to criminal offense enhancement proceedings may be drawn to arrive at the procedure for collateral attack discussed in the majority opinion, however, the offense of violating an habitual traffic offender order is not an enhancement of any other offense. It is as uniquely a separate substantive offense as many others which may be committed by operation of a motor vehicle including: operation of a motor vehicle without a driver license (T.C.A. § 55-50-301); driving while license revoked (T.C.A. § 55-50-504); carrying and exhibiting license (T.C.A. § 55-50-351); fraudulent use or display of license (T.C.A. § 55-50-603); and driving while under influence of intoxicant or drug (T.C.A. § 55-10-401). No one of these offenses is an enhancement of any other offense.
This court has applied such theory by holding that traffic convictions which were the basis of a civil habitual traffic offender order may also be used to enhance punishment for a criminal violation of such order. See State v. Reid, 751 S.W.2d 172 (Tenn.Crim.App.1988), where the court stated that there is no “double enhancement” because the defendant was only deprived of a “privilege” in the civil proceeding.
Again, I would affirm the action of the trial court and approve the suggested procedure for collateral attack of a civil habit*218ual traffic offender order for reasons stated herein.
. There is no contention that the habitual traffic offender order is void on its face.