            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE

                             JANUARY 1997 SESSION         FILED
                                                             May 19, 1997
STATE OF TENNESSEE,              *   C.C.A. # 03C01-9607-CC-00264
                                                       Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
      Appellant,                 *   SULLIVAN COUNTY

VS.                              *   Hon. Frank L. Slaughter, Judge

MARSHA COLLEEN BEELER,           *   (State Appeal)

      Appellee.                  *



For Appellee:                        For Appellant:

Burkett C. McInturff, Attorney       Charles W. Burson
131 Broad Street                     Attorney General & Reporter
P.O. Box 583
Blountville, TN 37662                Sandy R. Copous
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     Edward E. Wilson
                                     Asst. District Attorney General
                                     Blountville, TN 37617




OPINION FILED:_____________________




REVERSED AND REMANDED




GARY R. WADE, JUDGE
                                       OPINION

               This is an appeal of right by the State of Tennessee from an order

restoring Marsha Colleen Beeler's driving privileges. The defendant had been

previously declared a habitual motor vehicle offender. See Tenn. Code Ann. §§ 55-

10-601 to -617.



               The issue presented for review is whether the trial court prematurely

reinstated driving privileges for a defendant who had been declared a habitual motor

vehicle offender. We believe that reinstatement on the date of the order was

prohibited by statute. Thus, the judgment is reversed and the cause remanded to

the trial court.



               On February 22, 1993, a default judgment was entered declaring the

defendant to be a habitual motor vehicle offender. The judgment did not include the

certificate of service upon the defendant. See Rule 58, Tenn. R. Civ. P. Five days

later, an officer unsuccessfully attempted to serve a copy on the defendant. On

April 16, 1993, another officer served the defendant's mother, Glenda Beeler, with a

copy of the default judgment; the return of service indicated that Ms. Beeler had

agreed to provide the copy to the defendant. There is no indication she did so. On

February 16, 1994, the original judgment was refiled, this time containing the

required certification.



               In May of 1995, the defendant was charged with several offenses. In

the first indictment, the defendant was charged with violation of the order, driving on

a revoked license, and driving on a revoked license (fifth offense). In the second

indictment, the defendant was charged with the same three offenses. The third and

fourth indictments charged additional violations of the habitual traffic offender order;


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in the latter indictment, the defendant was also charged with aggravated perjury and

fabricating evidence when she claimed that she had been released from class on

that date to participate in a field trip.



               The defendant sought a dismissal claiming that the state did not have

a valid judgment due to the lack of a certificate of service. The trial court dismissed

all four indictments on the basis that the defendant had not been personally served

with a copy of the default judgment. The state failed to timely appeal the order of

dismissal. Thus, the action is final. See Tenn. R. App. P. 4(a).



               On May 6, 1996, the defendant filed a petition for the restoration of her

driving privileges. The trial court granted the petition, concluding that while the

February 22, 1993, default judgment had no validity due to its lack of certification,

the three-year statutory waiting period had nonetheless begun to run on that date.

Tenn. Code Ann. § 55-10-615(b). Because three years had passed since the

February 22, 1993, judgment, the trial court restored driving privileges.



               Initially, this court should point out that actions under the Motor Vehicle

Offenders Act are civil in 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

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                longer equitable that a judgment should have prospective
                application; or (5) any other reason justifying relief from
                the operation of the judgment.

Tenn. R. Civ. P. 60.02. The motion may be made "within a reasonable time...." Id.

The defendant did not, of course, make such an attack upon the judgment entered

in this case.



                Typically, any civil judgment becomes effective when marked filed for

entry by the clerk of the trial court under any one of the three following conditions:

                (1)   the signatures of the judge and all parties or
                counsel, or

                (2)   the signatures of the judge and one party or
                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.

Tenn. R. Civ. P. 58 (emphasis added).



                The primary purpose of the rule, of course, is to insure that all parties

to a suit are placed on notice of the results. If any one of the three segments of

Rule 58 has been met, the filing of the judgment with the clerk is the effective date

of the judgment. See Grantham v. Tennessee State Bd. of Equalization, 794

S.W.2d 751, 752 (Tenn. Ct. App. 1990).



                In our view, the date of the final judgment is February 16, 1994, the

day the state filed the judgment with the requisite signatures and qualifications, thus

complying with Rule 58. In State v. Don D. Williams, No. 03C01-9404-CR-00148

(Tenn. Crim. App., at Knoxville, Jan. 13, 1995), this court ruled that the effect of

noncompliance with Rule 58 was to suspend the operation of the judgment until the


                                             4
date of compliance. Hence the judgment declaring Williams to be a habitual

offender under the act became effective upon compliance with Rule 58.



              The defendant relies upon State v. Donnie M. Jacks, No. 03C01-9108-

CR-00256 (Tenn. Crim. App., at Knoxville, Apr. 28, 1992), wherein this court

reversed a conviction for violation of the defendant's habitual motor vehicle offender

status. In Jacks, the defendant had filed a motion to set aside the default judgment

under Rule 60 of the Tennessee Rules of Civil Procedure due to a failure on the part

of the state to comply with Rule 58.02 of the Rules of Civil Procedure. In that case,

the state did not show that there had been a certification by the court clerk or

counsel for the state indicating that a copy of the judgment had been served on the

defendant. As a result of the omission, the judgment was deemed ineffective; thus,

the defendant could not be found criminally responsible for violating the terms of the

judgment. The difference in this case, of course, was that here the state had

complied with the terms of Rule 58 by the re-entry of the order in proper form on

February 16, 1994. So the habitual offender order was in effect at all times

thereafter.



              As applied to these circumstances, the refiling of the judgment on

February 16, 1994, placed the defendant on habitual offender status. By the terms

of the statute, the defendant could not apply for a license for three years thereafter.

Tenn. Code Ann. § 55-10-615(b). On May 6, 1996, the defendant did not qualify for

reinstatement of driving privileges. The judgment must, therefore, be reversed.



              The state also asks that this court declare that the trial court erred in

the dismissal of the four indictments on September 12, 1995. While there may have

been error in that case, there was no appeal by the state. Their time to do so has


                                            5
expired. See Tenn. R. App. P. 4(a). The order of dismissal has become final. In

consequence, this court may not address the issue.



              Accordingly, the judgment is reversed on the basis that the defendant

was not entitled to be granted driving privileges. This cause is remanded to the trial

court for further proceedings consistent with this opinion.



                                          __________________________________
                                          Gary R. Wade, Judge

CONCUR:



______________________________
William M. Barker, Judge



_______________________________
Curwood Witt, Judge




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