State v. Michael Samuel Eidson ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1998 SESSION March 24, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9711-CR-00506
Appellee, * Sullivan C ounty
VS. * Hon. R. Jerry Beck, Judge
MICHAEL SAMUEL EIDSON, * (Habitual Mo tor Vehicle Offen der)
Appe llant. *
For Appellant: For Appellee:
Gale K. Flan ary John Knox Walkup
Assistant Public Defender Attorney General & Reporter
P.O. Box 839
Blountville, TN 37617 Ellen H. Pollack
Assistant Attorney General
425 Fifth Avenu e North
Cordell Hull Building
Nashville, TN 37243
Greg A. Newman
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Michael Eidson, pled guilty to violating an order
declaring him to be an habitual traffic offender, reserving the following certified
question of law: whether the 1993 order declaring the defendant to be an habitual
traffic offender is void because the clerk's office failed to mark the order "filed" or
"filed for entry." See Tenn. R. Civ. P. 58. The trial court imposed a two-year
sentence to be served in TDOC. We affirm the judgment of the trial court.
On October 8, 1993, Criminal Court Judge E. P. Calhoun signed an
order declaring the defendant to be an habitual traffic offender. The order barred
the defendant from driving a motor vehicle until the defendant's driving privileges
had been reinstated. See Tenn. Code Ann. § 55-10-615. The defendant, who was
not represented by counsel, and the assistant district attorney general approved and
signed the contents of the order. A copy was made a part of the minutes of the
court. Judge Calhoun signed the minutes. The clerk did not stamp the order "filed"
prior to placing the order in the minutes.
In 1997, the grand jury returned an indictment charging that the
defendant operated a motor vehicle in violation of the order entered in 1993.1 The
defendant filed a motion to dismiss the indictment, claiming the 1993 order was
invalid. When the trial court overruled the motion to dismiss, the defendant pled
guilty, reserving the certified question of law challenging the validity of the traffic
offender order.
Initially, actions under the Motor Vehicle Offenders Act are civil in
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The defendant was also charged and convicted of several other driving-related offenses; the
only convic tion on ap peal, how ever, is that fo r violating the h abitual traffic o rder on J anuary 30 , 1997.
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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
longer equitable that a judgment should have prospective
application; or (5) any other reason justifying relief from
the operation of the judgment. The motion shall be
made within a reasonable time, and for reasons (1) and
(2) not more than one year after the judgment, order or
proceeding was entered or taken.
Tenn. R. Civ. P. 60.02.
Here, the defendant did not attack the order under Rule 60.02, Tenn.
R. Civ. P.; instead, he filed a motion to dismiss the indictment charging him with
violating the order. See Rule 12, Tenn. R. Crim. P. A collateral attack in a separate
proceeding such as this is not permissible. Everhart v. State, 563 S.W.2d 795, 797-
98 (Tenn. Crim. App. 1978). "'If the attack be collateral in its nature, an attack may
not be made even on the ground of fraud.'" Id. at 798 (citations omitted).
Even if the defendant had proceeded under Rule 60, the challenge to
the order would have failed. The order declaring the defendant to be an habitual
traffic offender must comply with Rule 58, Tenn. R. Civ. P.:
ENTRY OF JUDGMENT
Entry of a judgment or an order of final disposition is
effective when a judgment containing one of the following
is marked on the face by the clerk as filed for entry:
(1) the signatures of the judge and all parties or
counsel, or
(2) the signatures of the judge and one party or
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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.
. . . Following entry of judgment, the clerk shall make
appropriate docket notations and shall copy the judgment
on the minutes, but failure to do so will not affect validity
of the entry of judgment.
(emphasis added). The advisory commission comments to the rule provide that "the
effective date of a judgment is the date of its filing with the clerk after being signed
by the judge, even though it may not be copied or entered on the minute book until a
later date."
In our view, the clerk's failure to file stamp the order would generally
cause the order to be ineffective. The plain language of the rule provides that the
order becomes effective only after the clerk marks the order as filed. Tenn. R. Civ.
P. 58. See Teresa Mayrene King Mayes v. Gary Stephen Mayes, C.A. No. 03A01-
9404-CV-00121 (Tenn. App., at Knoxville, Jan. 11, 1995) (finding final judgment was
not effective because the clerk had not marked the judgment as filed for entry).
The defendant did not, however, challenge the order in a timely
fashion. Under Rule 60.02, Tenn. R. Civ. P., the defendant must act to set aside
the order within a "reasonable time." Here, almost three years elapsed before the
defendant challenged the order. No reason is given for the delay. Moreover,
because the defendant placed his signature on the order, he was fully aware that he
had been prohibited from driving. See State v. Don D. Williams, No. 03C01-9404-
CR-00148 (Tenn. Crim. App., at Knoxville, Jan. 13, 1995) (the court found an eight-
year delay in challenging the traffic offender order was reasonable because the
order was a default judgment about which the defendant had no knowledge for
several years). The delay may be unreasonable where the defendant knows of the
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judgment against him and offers no reason for his failure to timely challenge the
judgment. Magnavox Co. v. Boles & Hite Constr. Co., 583 S.W.2d 611, 613-14
(Tenn. App. 1979). The three-year delay, under these circumstances, was
unreasonable.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
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David H. Welles, Judge
________________________________
Thomas T. W oodall, Judge
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