        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                      January 27, 2010 Session

                 STATE OF TENNESSEE v. ERNEST HURD
                Appeal from the Criminal Court for Anderson County
                     No. 90CR0466 Donald R. Elledge, Judge


                  No. E2009-00872-CCA-R3-CD - Filed June 15, 2010




The Defendant, Ernest Hurd, appeals as of right from the Anderson County Criminal Court’s
denial of his motion to set aside the judgment declaring him to be a motor vehicle habitual
offender (MVHO). See Tenn. Code Ann. §§ 55-10-601, et seq. In this appeal as of right,
the Defendant argues that the default judgment declaring him to be a MVHO is void because
it was not properly certified under Tenn. R. Civ. P. 58. Therefore, he argues that he cannot
be convicted of violating the MVHO statute. See Tenn. Code Ann. § 55-10-616. Following
our review, we hold that the default judgment met the requirements of Rule 58 and that, even
if the judgment had not met these requirements, a delay of over sixteen years in challenging
the judgment precludes any relief under Tenn. R. Civ. P. 60.02. Accordingly, we affirm the
judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

J. Thomas Marshall, Jr., District Public Defender; and Nancy Meyer, Assistant Public
Defender, for the appellant, Ernest Hurd.

Robert E. Cooper, Attorney General and Reporter; John H. Bledsoe, Senior Counsel; David
S. Clark, District Attorney General; and Sandra N.C. Donaghy, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                               OPINION

        The record reflects that a petition issued on October 8, 1990, seeking that the
Defendant be declared a MVHO. Following the Defendant’s failure to appear at the May 24,
1991 show cause hearing concerning the petition, the trial court entered a default judgment
declaring the Defendant to be a MVHO on May 30, 1991. The default judgment, signed by
the trial judge but not by the parties, contains a hand-written notation by the court clerk that
copies of the judgment were sent to the Assistant District Attorney General, the Tennessee
Department of Safety, and the Defendant.

        Although not included in the record on appeal, the transcript reflects that the
Defendant was indicted on June 18, 2007 for driving while declared a MVHO. On October
5, 2007, the Defendant filed a motion to set aside the default judgment on the basis that the
default judgment did not contain a proper Rule 58 certificate of service. As an additional
basis, the Defendant argued that the judgment did not contain the signature of either the
Defendant or his attorney. The State, at the trial court level, conceded that the default
judgment did not comport with the certificate of service requirements of Rule 58 but asked
that the motion be overruled due to the untimely filing of the challenge of the order. In the
same pleading, the State requested that the trial court properly enter the default judgment
declaring the Defendant to be a MVHO.

       At a December 7, 2007 hearing, the State argued that the Defendant had amassed
eleven driving convictions since being declared a MVHO, yet the Defendant had not
previously challenged the declaration. Defense counsel acknowledged that the Defendant
had notice of the MVHO judgment previously but argued that the Defendant had never had
the opportunity to challenge the declaration because the Defendant “can’t afford a private
attorney. As Public Defenders, we haven’t been able to do it, because every time he’s been
charged in sessions court when driving while MHVO, they agree [that the] Judgment is not
valid [and say that they are] not going to prosecute [him].” Following the arguments of
counsel, the trial court took the matter under advisement to allow the parties to brief their
respective positions and set the case for further hearing on December 17, 2007. 1

       At a February 22, 2008 hearing, the trial court announced its findings. The trial court
found that the default judgment was properly filed on May 30, 1991. The trial court also
found that the Defendant had been previously charged with violations of the MVHO statute
on “[a]t least three occasions” as early as 1993 but that he had failed to challenge the validity
of the default judgment. The trial court discussed the Defendant’s offer of proof regarding
his inability to pay to have the default judgment set aside and stated that “I don’t find [the

       1
           The record before this court contains no transcript from the December 17, 2007 hearing.

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Defendant’s] testimony to be credible.”2 Thus, the trial court concluded that the Defendant
had sufficient notice of the default judgment. The trial court found that the default judgment
was properly certified, citing DeLong v. Vanderbilt University, 186 S.W.3d 506 (Tenn. Ct.
App. 2005). The trial court also found that the sixteen and a half year delay in challenging
the judgment was unreasonable. For these reasons, the trial court denied the motion to set
aside the default judgment.

         On appeal, the Defendant again argues that the default judgment is void because it
does not comport with the requirements of Rule 58 regarding the certificate of service and
that it therefore cannot be the basis for a conviction of driving while a MVHO. The State
now argues that the trial court correctly ruled that the default judgment met the requirements
of Rule 58 and, furthermore, that the challenge pursuant to Rule 60.02 was unreasonably late.
Following our review, we agree with the State.

                                                Analysis

       Although criminal sanctions flow from violations of the MVHO statute, the initial
“proceeding under the Motor Vehicle Habitual Offender Act is civil in nature and therefore
is governed by the Tennessee Rules of Civil Procedure.” State v. Malady, 952 S.W.2d 440,
444 (Tenn. Crim. App.1996) (citing Everhart v. State, 563 S.W.2d 795 (Tenn. Crim.
App.1978); Bankston v. State, 815 S.W.2d 213, 216 (Tenn. Crim. App.1991)). Relative to
the entry of judgments in civil proceedings, Rule 58 Tennessee Rules of Civil Procedure
provides in pertinent part:

        Entry of the 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 the 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.

Furthermore, because MVHO declarations are civil in nature, the proper avenue to seek relief
from a MVHO judgment is Rule 60.02 of the Tennessee Rules of Civil Procedure. Bankston,


        2
          Presumably, this offer of proof occurred at the December 17, 2007 hearing, the transcript of which
is absent from the record on appeal. It is the duty of the appellant to provide an accurate record of what
transpired in the trial court. Tenn. R. App. P. 24.

                                                    -3-
815 S.W.2d at 216.

       The default judgment in this case was signed by the trial judge and contained a hand-
written notation by the court clerk that copies of the judgment were provided to the parties.
See Tenn. R. Civ. P. 58(3). The trial court correctly ruled that such a certification is
sufficient to satisfy the requirements of Rule 58. DeLong, 186 S.W.3d at 510 (holding “cc:”
notation that all parties had received a copy of the judgment was sufficient to satisfy Rule
58). Therefore, we conclude that the default judgment was properly entered on May 30, 1991
and may provide the basis for future violations of the MVHO statute.

       Furthermore, even if the default judgment had not met the requirements of Rule 58,
the Defendant would not be entitled to relief pursuant to Rule 60.02. This court has held that
“Rule 60.02 motions cannot afford a basis for relief if filed unreasonably late.” State v.
Joseph Kevan Clark, No. W2006-00245-CCA-R3-CD, 2006 WL 3208570, at *3 (Tenn.
Crim. App. Nov. 7, 2006). A delay of over sixteen years in filing a challenge to the default
judgment is an unreasonable delay. Additionally, we also note that the record before this
court reflects that the Defendant in this case had actual notice at least fourteen years prior to
mounting his challenge to the MVHO declaration. Actual notice, coupled with the
unreasonable delay, will not provide relief under Rule 60.02. See State v. Paul C. Michael,
No. W2000-03015-CCA-R3-CD, 2002 WL 1558506, at *3 (Tenn. Crim. App. Jan. 8, 2002).
We conclude that the trial court properly denied the motion to set aside the MVHO
declaration.

                                       CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                                     D. KELLY THOMAS, JR., JUDGE




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