        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs January 23, 2002

                   STATE OF TENNESSEE v. IVAN RAY SHIRK

                      Appeal from the Criminal Court for Knox County
                       No. 59857    Richard R. Baumgartner, Judge



                                 No. E2001-00460-CCA-R3-CD
                                        August 21, 2002

The defendant, Ivan Ray Shirk, appeals from the Knox County Criminal Court’s denial of his motion
to declare void the judgment proclaiming him to be a habitual offender pursuant to the Motor
Vehicle Habitual Offenders (MVHO) Act. He contends that the MVHO judgment is void because
the trial court improperly entered it nunc pro tunc before entry of the judgments on two of the three
qualifying offenses. We affirm the trial court’s denial of the defendant’s motion to void the MVHO
judgment.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JAMES
CURWOOD WITT, JR ., J., joined.

Mark E. Stephens, District Public Defender; Paula R. Voss and John Halstead, Assistant Public
Defenders, for the appellant, Ivan Ray Shirk.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

         On January 19, 1996, the defendant pled guilty to two counts of driving on a revoked license
(DRL), a Class B misdemeanor, for offenses occurring on October 2, 1994, and February 19, 1995.
At the submission hearing, the state presented a petition to have the defendant declared a habitual
motor vehicle offender. See Tenn. Code Ann. § 55-10-601 et seq. In addition to the two DRL
offenses, the state listed a February 20, 1992 conviction for driving under the influence of an
intoxicant (DUI) as the qualifying convictions. The state asserted that the defendant had agreed to
concede that he was a habitual offender and that it had agreed that the judgment on the MVHO
conviction would be entered nunc pro tunc to take effect October 2, 1994. The trial court found the
defendant to be a habitual offender under the MVHO Act because he had been convicted of three
traffic offenses within a five-year period. It entered a judgment nunc pro tunc to October 2, 1994,
ordering him to surrender his driver’s license and prohibiting him from having a driver’s license for
three years.

        On November 7, 2000, the defendant moved the trial court to declare the MVHO judgment
void pursuant to Rule 60.02, Tenn. R. Civ. P, because the judgments for his DRL convictions were
not entered until May 17, 1996, which was after the entry of the MVHO judgment. At the hearing
on this motion, the trial court found that it had reserved judgment on the DRL cases until May 17,
1996, in order to give the defendant a chance to pay his costs on those cases. It observed that the
defendant had agreed to be declared a habitual offender in exchange for the state’s agreement that
the judgment be ordered nunc pro tunc to October 2, 1994. It found that, thereby, the defendant
received the benefit of the opportunity to obtain a driver’s license three years after October 2, 1994,
rather than January 19, 1996. It concluded that while the MVHO judgment might be voidable, it
was not void, noting that it had jurisdiction over the defendant, who was present and had signed the
judgment. It also determined that the defendant had waived any irregularities in the judgment
because he waited an unreasonable length of time before seeking to set it aside.

        The defendant contends that the MVHO judgment is void because (1) the nunc pro tunc entry
did not reflect an earlier judgment and (2) it was entered before the judgments of conviction on two
of the underlying offenses. The state contends that the defendant’s lengthy delay in challenging the
MVHO judgment is unreasonable under Rule 60.02, Tenn. R. Civ. P. Although it concedes that the
trial court lacked the authority to enter the judgment nunc pro tunc to 1994, it argues that this court
should affirm the trial court’s finding that the defendant is a habitual offender and remand the case
for proper entry of the MVHO judgment. We agree with the defendant that the nunc pro tunc entry
of the judgment is erroneous but conclude that it does not render the MVHO judgment void.

         Tennessee case law has firmly established that a proceeding under the MVHO Act is civil
in nature and governed by the Tennessee Rules of Civil Procedure. See State v. Malady, 952
S.W.2d 440, 444 (Tenn. Crim. App. 1996); Everhart v. State, 563 S.W.2d 795, 797 (Tenn. Crim.
App. 1978). In the present case, the defendant seeks relief from the judgment pursuant to Rule
60.02, which provides, in pertinent part, “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: . . . (3) the judgment is void . . . . The motion shall be made within a reasonable
time . . . .” The burden of proof is on the one seeking relief from a judgment under Rule 60.02 to
show the facts giving rise to the relief. Banks v. Dement Const. Co., 817 S.W.2d 16, 18 (Tenn.
1991). This burden must be met by clear and convincing evidence. Howard v. Howard, 991 S.W.2d
251, 255 (Tenn. Ct. App. 1999); Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990).
Furthermore, a trial court’s denial of a motion for relief based on Rule 60 is subject to reversal only
upon an abuse of discretion. See Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993).

         Initially, we examine the state’s contention that the defendant’s claims must fail because he
has not moved to vacate the MVHO judgment within a reasonable time under Rule 60.02. It argues
that the trial court properly found that the defendant’s near four-year, ten-month delay in challenging
the MVHO judgment was unreasonable. Generally, we agree with the trial court that a four-year,
ten-month delay is an unreasonable time in which to bring a Rule 60.02 challenge. The broad power

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granted by Rule 60.02 is not to be used to relieve a party from free, calculated, and deliberate
choices. See Banks, 817 S.W.2d at 19 (construing Rule 60.02(5)). Although the defendant did not
attempt to explain the delay at the hearing on his motion to declare the MVHO judgment void, the
trial court observed that “apparently there was some driving violation that occurred, which gave rise
then to your motion to set this aside.” The defendant waited almost four years, ten months before
he challenged the MVHO judgment and only did so when he was faced with the potential
ramifications of violating it. “The defendant cannot use this court to benefit from his neglect after
the judgment was rendered.” State v. Ronald D. Correll, Jr., Nos. 03C01-9707-CC-00295, 03C01-
9801-CC-00014, Blount County, slip op. at 4 (Tenn. Crim. App. Oct. 21, 1998), app. denied (Tenn.
Apr. 5, 1999) (holding that the defendant’s unjustified, twenty-month delay in challenging his
MVHO judgment was unreasonable under Rule 60.02); see also Day v. Day, 931 S.W.2d 936,
939-40 (Tenn. Ct. App. 1996) (holding that a petition challenging a divorce decree filed fourteen
months after the decree became final was untimely when the petitioner made a free and deliberate
choice not to appeal from the final decree).

        The defendant contends that Ronald D. Correll, Jr. is distinct from the present case because
the defects in the judgment in Correll were technical in nature and, notwithstanding the untimeliness
of the defendant’s challenge, this court determined that the defects did not render the judgment void.
He argues that in the present case, the error renders the judgment void, and a void judgment can be
challenged at any time. He cites to Pittman v. Pittman, which holds that “except for exceptional
circumstances that might require a different rule, Tenn. R. Civ. P. 60.02’s reasonable time limitation
does not place a time limit on the right to challenge a judgment on the ground that it is void.” No.
01-A-01-9301-CH-00014, Maury County, slip op. at 5 (Tenn. Ct. App. Aug. 24, 1994) (analyzing
husband’s Rule 60.02(3) challenge to divorce decree five years after its entry). Even taking the
defendant’s contention regarding Rule 60.02’s time limit as true, the judgment is not void.

        The state concedes that the trial court erroneously entered the MVHO judgment nunc pro
tunc to be effective as of October 2, 1994. “A nunc pro tunc order is not permitted to antedate and
belatedly enter of record a judgment never in fact previously pronounced by the Court.” State v.
Morris, 788 S.W.2d 820, 824 (Tenn. Crim. App. 1990); see Thomas v. State, 206 Tenn. 633, 639,
337 S.W.2d 1, 4 (1960) (observing that “where a judgment is pronounced but not entered, it may be
later entered nunc pro tunc, as of the date of its pronouncement, provided the requisite facts appear
of record to justify its entry”). Here, the trial court rendered no MVHO judgment as of October 2,
1994, and, indeed, any such judgment would have been before the defendant committed the third
qualifying offense. In light of this error, the state argues that we should remand the case for the trial
court to reenter the MVHO judgment, presumably as of January 19, 1996, the date it was rendered.
The defendant argues that the trial court’s entry nunc pro tunc of a judgment never before rendered
makes the MVHO judgment void.

        We begin by noting that a judgment is void if imposed by a court lacking in jurisdiction over
either the subject matter or the parties. Nolan v. Cameron, 77 Tenn. 234, 237 (1882); see also
Magnavox Co. v. Boles & Hite Constr. Co., 583 S.W.2d 611, 613 (Tenn. Ct. App. 1979) (discussing
Rule 60.02(3)). If a judgment meets all the requirements to make it valid and the objectionable
portion of the judgment adds nothing to its force and the exclusion of the objectionable portion does

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not change the operation or effect of the judgment, then the objectionable portion can be treated as
surplusage. Fanning v. Fly, 42 Tenn. 486, 489-90 (1865); 16 Tenn. Jur. Judgments and Decrees §
82 (1998); see also Torilla v. Alexander, 104 Tenn. 453, 454, 58 S.W.124, 125 (1900) (holding the
objectionable words stating that the damages were subject to all credits were surplusage and did not
prevent the valid judgment from being final).

        Our supreme court has stated in dicta that a judgment actually previously rendered and later
entered nunc pro tunc to a day preceding the date of rendition “would not be void, but only
erroneous, and could [be] corrected upon appeal.” Collins v. Williams, 162 Tenn. 262, 266, 36
S.W.2d 93, 95 (1931). In Lowder v. Anderson, the court of civil appeals struck the nunc pro tunc
language in the probate court’s order because the court had not made the order on the date to which
it was entered nunc pro tunc. 4 Hig. 620, 630 (Tenn. Ct. App. 1914). The court deemed the order
to be proper on the day that it was actually made and regarded the nunc pro tunc language as
surplusage, noting it to be “useless and of no effect.” Id.

         In the present case, the trial court rendered an MVHO judgment on January 19, 1996.
Following the above precedents, the nunc pro tunc language in the MVHO judgment is surplusage,
provided the judgment is otherwise valid. The defendant contends that the MVHO judgment is still
void if deemed effective as of its actual date of entry on January 19, 1996, because this date precedes
the entry of the judgments of conviction on two of the qualifying offenses. He also argues that this
court should not affirm the judgment in the absence of the nunc pro tunc language because the nunc
pro tunc status of the judgment was an integral part of his agreement to concede his status as a
habitual offender.

         As noted above, a judgment must be rendered by a court with jurisdiction over the subject
matter and the parties to be valid. In the present case, the Knox County Criminal Court, as a court
of general criminal jurisdiction, had jurisdiction over the determination of the defendant’s MVHO
status. See Tenn. Code Ann. § 55-10-606(a); see also Tenn. Code Ann. § 16-10-102 (granting the
circuit courts original jurisdiction over all crimes). Furthermore, the trial court expressly found that
it had personal jurisdiction over the defendant, who was present at the submission hearing. The
MVHO Act requires that “if the court finds that such defendant is an habitual offender, the court
shall make an order directing that such person shall not operate a motor vehicle on the highways of
this state.” Tenn. Code Ann. § 55-10-613(a). The present MVHO judgment declares the defendant
to be a habitual offender and orders that he may not have a driver’s license for three years. We
conclude that the fact that the DRL convictions were not entered until after the MVHO judgment,
even if erroneous, does not render the judgment void. Furthermore, we deem the defendant’s
contention regarding the nunc pro tunc language being integral to his concession to habitual offender
status to relate to the voluntariness of the concession. Similarly, an involuntary guilty plea renders
the resulting judgment voidable, not void. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The
defendant’s claims regarding the voluntariness of his concession do not render the MVHO judgment
void.

       Based upon the foregoing and the record as a whole, we affirm the trial court’s denial of the
defendant’s motion to declare the MVHO judgment void.

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      ___________________________________
      JOSEPH M. TIPTON, JUDGE




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