             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE                  FILED
                          MAY 1998 SESSION
                                                               May 5, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE,          )
                             )
             Appellee,       )    No. 03C01-9708-CR-00327
                             )
                             )    Sullivan County
v.                           )
                             )    Honorable R. Jerry Beck, Judge
                             )
ROBERT M. SNEED,             )    (Habitual motor vehicle offender)
                             )
             Appellant.      )


For the Appellant:                For the Appellee:

Robert M. Sneed, Pro Se           John Knox Walkup
1817 Oakwood Drive                Attorney General of Tennessee
Kingsport, TN 37664                      and
                                  Todd R. Kelley
                                  Assistant Attorney General of Tennessee
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  H. Greeley Welles, Jr.
                                  District Attorney General
                                  P.O. Box 526
                                  Blountville, TN 37617-0526




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Robert M. Sneed, appeals as of right from the judgment of

the Sullivan County Criminal Court declaring him to be a habitual motor vehicle

offender, thereby barring him from operating a motor vehicle on the highways of

Tennessee. He raises various issues dealing with (1) the sufficiency of the evidence of

the predicate convictions, (2) the constitutionality of the convicting, sentencing, and

Motor Vehicle Habitual Offender (MVHO) proceedings, particularly regarding due

process and double jeopardy, and (3) the failure of the trial court to appoint him counsel

for this appeal. We affirm the trial court.



              The judgment of the trial court declaring the defendant to be a habitual

motor vehicle offender was entered on July 25, 1997. The trial court based this

conviction upon the following predicate convictions regarding driving under the

influence of an intoxicant (DUI) and driving with a revoked license (DRL):

OFFENSE                       COURT                              CONVICTION DATE

DRL           Sullivan County General Sessions Court             March 23, 1995
DUI           Sullivan County Criminal Court                     May 10, 1996
DUI           Sullivan County General Sessions Court             October 1, 1996



              As a starting point, we note certain propositions of law that dispose of

many of the defendant’s contentions. An MVHO proceeding is civil in nature, not

criminal. See Everhart v. State, 563 S.W.2d 795, 797 (Tenn. Crim. App. 1978). It

involves revocation of the privilege of driving, not the deprivation of a property right. Id.

It is remedial in nature and does not constitute multiple punishment under the Double

Jeopardy Clause relative to the prior convictions upon which the proceeding is based.

See State v. Conley, 639 S.W.2d 435, 437 (Tenn. 1982); State v. Malady, 952 S.W.2d

440, 442 (Tenn. Crim. App. 1996). Also, the defendant may not collaterally attack




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predicate convictions during an MVHO proceeding. See Everhart, 563 S.W.2d at 797-98.

Under these principles, any complaint about the constitutional validity of the predicate

convictions or of the MVHO process must fail. Similarly, given the civil nature of the

proceeding, the defendant has no constitutional right to the appointment of counsel.

Likewise, no such statutory right exists.



              The remaining issue is whether sufficient predicate convictions existed to

justify the defendant being declared a habitual motor vehicle offender. On this point,

the defendant asserts that the DUI conviction of May 10, 1996, was not final because it

was on appeal to this court when the trial court entered the MVHO judgment. The

record bears this out, even though the defendant has failed to make the transcript of

the MVHO hearing a part of the record on appeal. We take judicial notice of the fact

that the case was on appeal at the time of the trial court hearing. See State v. Robert

M. Sneed, No. 03C01-9610-CR-00371, Sullivan County (Tenn. Crim. App. Sept. 30,

1997).



              The defendant notes that the MVHO act defines a conviction for its

purposes as a “final conviction.” Tenn. Code Ann. § 55-10-603(1). He asserts that this

means that a conviction that is on appeal may not be used as a predicate conviction in

an MVHO proceeding.



              In response, the state relies upon State v. Loden, 920 S.W.2d 261 (Tenn.

Crim. App. 1995), a driving on a revoked license case. In Loden, the defendant

claimed that because the DUI conviction that led to license revocation was still on

appeal, the revocation was not effective at the time that he was charged with DRL. He

relied upon Tenn. Code Ann. § 55-50-501, which requires the department of safety to

revoke a license upon receipt of a record of a conviction for certain offenses, including

DUI, “when such conviction has become final.” In Tenn. Code Ann. § 55-50-503,



                                            3
conviction is defined for the purposes of the Driver Licenses chapter as a “final

conviction.”



               In considering what a “final conviction” means, this court stated that it

should look to “the context of the entire statutory scheme” and quoted from what it

called the legislature’s stated “purposes of the motor vehicle statute.” Loden, 920

S.W.2d at 264.1 This court also stated that “a defendant is presumed guilty after

judgment,” citing a case that states this proposition relative to an appellate standard of

review in determining if the evidence is sufficient to convict. Id.; see State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982). It then concluded that “to allow an individual

convicted of and presumed to be guilty of driving while intoxicated to continue to

operate a motor vehicle pending appeal would be inconsistent with the legislature’s

statement of public policy.” Loden, 920 S.W.2d at 264.



               We view Loden to be precedential authority to which we will adhere. This

means that the defendant’s predicate convictions were final for the purpose of declaring

him to be a habitual motor vehicle offender.




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                   Public policy. -- It is hereby declared to be the policy of this state to:

                       (1) Provide maximum safety for all persons who travel or otherwise
               use the public highways of the state;

                        (2) Deny the privilege of operating motor vehicles on such
               highw ays to pe rson s wh o by th eir conduct and record have demonstrated
               their indifference to the safe ty and welfa re of othe rs an d the ir disrespect for
               the laws of the state; and

                        (3) Disc oura ge re petitio n of u nlaw ful ac ts by in dividu als against the
               peace and dignity of this state and its political subdivisions, and to impose
               the added deprivation of the privilege of operating motor vehicles upon
               habitual offenders who have been conv icted repe ated ly of violations of laws
               involving the operation of motor vehicles.

Tenn. Code Ann. § 55-10-602.

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            In consideration of the foregoing, we affirm the judgment of the trial court.



                                               ______________________________
                                               Joseph M. Tipton, Judge

CONCUR:



__________________________
Joe G. Riley, Judge



__________________________
James Curwood W itt, Jr., Judge




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