        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE

                      DECEMB ER SESSION, 1996
                                                    FILED
                                                      April 3, 1997

STATE OF TENNESSEE,   )                         Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
                      )         C.C.A. NO. 03C01-9511-CC-00347
    Appe llant,       )
                      )         SULLIVAN COUNTY
                      )
V.                    )
                      )         HON. FRANK SLAUGHTER, JUDGE
ROBERT EDWARD BOLING, )
                      )         (HABITUAL MOTOR OFFENDER)
    Appellee.         )


              ON APPEAL FROM THE JUDGMENT OF THE
               CIRCUIT COURT OF SULLIVAN COUNTY


FOR THE APPELLEE:               FOR THE APPELLANT:

STEPHEN M. WALLACE              CHARLES BURSON
District Public Defender        Attorney General & Reporter
Second Judicial District
P.O. Box 839                    EUGENE J. HONEA
Blountville, TN 37617           Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                H. GREELEY WELLS, JR.
                                District Attorney General

                                ROBERT H. MONTGOMERY, JR.
                                Assistant District Attorney General
                                Second Judicial District
                                P.O. Box 526
                                Blountville, TN 37617-0526



OPINION FILED ________________________

MODIFIED AND REMANDED IN PART; DISMISSED IN PART

THOMAS T. WOODALL, JUDGE
                                 OPINION
             Pursuant to Rule 3(c)(1) of the Tennessee Rules of App ellate

Procedure, the State has appealed a n order of the Criminal Court of Sullivan

County.    The tr ial court ruled that a previous order of that court finding the

Defendant was an habitual motor vehicle offender was not a “final judg ment”

when the Defendant allegedly committed two violations of the Habitual Motor

Vehic le Offender Act in November 1994. W e modify the o rder of the trial court

and remand this case for entry of a proper judgm ent in th e hab itual m otor ve hicle

offender case and dismiss the charges against Defendant for violations of the

Habitua l Motor V ehicle O ffender A ct.



             There is no transcript of the evidence in these proceedings, but the

parties did enter into a Stipulation of Facts which is a part of the record on

appe al. From our rev iew of th e Stipu lation of Facts and other documents, the

following facts are found in the record.



             On March 15, 1994, the office of the District Attorney General for

Sullivan County     filed a pe tition in the Criminal Co urt of Sullivan County

requesting that the Defendant be declared an habitual motor vehicle offender.

This case had a docket number of S35,683 in the Criminal Court of Sullivan

County. A docu ment d esigna ted as a “s umm ons,” bu t which in su bstan ce is

worded more as a show cause order, was issued by the deputy court clerk on

March 17, 199 4 and liste d the ad dress for the Defe ndant a s:




                                           -2-
                           121 Clark Street
                           Kingsport, TN 37660
                           (Sull Co Jail After 3/8/94)


               The “summons” reflects that Defendant was served by personal

service at the Sullivan County Jail by a deputy sheriff on March 18, 1994. It gave

Defendant notice to appear in the Criminal Court of Sullivan County on June 17,

1994 at 9:00 a.m. and to show cause why he should not be banned from

operating a motor vehicle “according to the Petition which is herewith served

upon you.” Furth ermor e, it stated that if the Defendant failed to appear as

ordered, judgment by default would be rendered against him for the relief

demanded in the petition. The petition was not made a part of the record on

appea l.



               On June 17, 1994, the Defendant did not appear and no attorney

made any appearance or otherwise made any defense on behalf of the

Defen dant. On the court date, the Defendant was no longer incarcerated at the

Sullivan County Jail, but ha d been trans ferred to the Brus hy Mou ntain Sta te

Prison in Morgan County. At this hearing on June 17, 1994, the State moved for

a judgment by default against the Defendant, and this motion was granted by the

trial court.




               On June 24, 1994, a default judgment was prepared by the office of

the District Attorney General and was forward ed to the trial court judge with a

certificate of service signed by an Assistant District Attorney General that a copy

of the judgment had been sent to the Defendant “at his last known address.” The



                                        -3-
defau lt judgment states on its face, below the signature for the certificate of

service as follo ws: “M r.    Rob ert E. B oling [Defendant], 121 C lark Stree t,

Kingsp ort, Tennessee 37660.” On June 24, 19 94, the Defe ndan t was s till

incarcerated in the Brushy Mo untain Prison in M organ Co unty.



              The 121 Clark Street, Kingsport, Tennessee address was the

address which ha d been provided by the De fendan t to the Tennessee

Department of Safety when the Defendan t obtain ed his Ten ness ee driv er’s

permit. The default judgment was signed by the trial court on June 30, 1994 and

filed in the clerk’s office on the same date.



              On June 30, 19 95 [sic ] a “Re turn of S ervice o f Defa ult Judgment,”

prepared by the office of the District Attorney General was also filed with the trial

court clerk. This document is not filed in the record. The “Return of Service of

Defa ult Judg men t” was s igned July 20, 199 4 [sic] by D eputy Sheriff Mark Ducker

and contained thereon han dwritten mark ings that the De fendant ‘Doe sn’t live at

addre ss.’” Additional handwritten markings near the Defendant’s address were

“ex-wife ’s house,” “don ’t live here,” “ch eck 33 40 Adlin e,” “Gran dmoth er’s Hom e,”

and “Bloom ingdale Pike a rea.”



              It is not clear from the Stipulation of Facts w hether or not the

address listed on the “Return of Service of Default Judgment” prepared by the

District Attor ney was the 121 Clark S treet, King sport, Te nness ee add ress.



              The envelop e sent to the Defendant at 121 C lark Stree t, Kingsp ort,

Tennessee     37660, containing the copy of the default judgment as per the

                                          -4-
certificate of service, was not returned as undelivered by the Postal Service to the

office of the District Attorney General. The Defendant maintained that he never

personally received a copy of the default judgment prior to his arrest on

November 25, 1994 for operating a motor vehicle in violation of the habitual

motor ve hicle offen der orde r.



              On January 23, 1995, the grand jury of Sullivan County returned an

indictment charg ing the Defe ndan t with Violation o f the H abitua l Motor Vehic le

Offender Act, alle ging that an offense was committed by the Defendant on

November 6, 1994. This indictment bears the docket number S37,280. On

February 6, 1995 , the gra nd jury of Sulliva n Cou nty aga in indicte d Def enda nt, this

time in a two-count Indictment charging him in Count 1 with a Violation of the

Hab itual Motor Vehicle Offender Act which was alleged to have occurred on

November 25, 1994. Count 2 charged the Defendant with the offense of leaving

the scene of an acc ident with property damage, alleging that it also occurred on

Novem ber 25, 1 994.



              On March 22, 1995, the Defendant, through his trial counsel, filed a

“Motion to Set As ide Judg ment.” In this Motion, the Defendant asked the trial

court to set aside the judgment filed June 30, 1994 declaring him to be an

habitual moto r vehicle offend er. Th e mo tion sp ecifica lly allege d that th e defa ult

judgment should be set aside because (1) the Defendant was incarcerated on the

date of the hearing, June 17, 1994, and could not appear in court, and (2) the

Defendant never knew or had any reason to believe that the judgment had been

entered against him. The motion was file d purs uant to Rule 60.02, Tennessee

Rules of Civil Proc edure, b ut it did not bear the docket number of the habitual

                                           -5-
motor vehicle offender petition which was S35,683. Instead, the “Motion to Set

Aside Judgment” was filed under Docket Nos. S37,350 and S37,280, the docket

numb ers for the tw o indictm ents retu rned ag ainst the D efenda nt.



             On May 5, 1995, the Defendant filed a “Motion to Dismiss

Indictments” in Docket Nos. S37,280 and S37,350. This Motion was red uced to

writing and filed pursua nt to an oral mo tion which had been m ade by the

Defendant on Mar ch 22, 19 95. In this m otion, the D efenda nt alleged that the

default judgm ent was not and had not become final at the time of the alleged

charge s in Doc ket Nos . S37,28 0 and S 37,350 .



             On July 28, 1995, the trial court entered an order, bearing Docket

Nos. S37,280 and S37,350, which states in full as follows:

                                      ORDER

                    The Court having considered the argu men ts of co unse l,
      the entire record and the “Agreed Stipulation Of Fa cts” filed on Ju ly
      14, 1995, finds that the “default judgment” signed by J udge Edgar
      P. Calhoun on June 30, 1994 in the case styled State of Tennessee
      v. Robert E. Boling (Case No. S35,683) was not final on November
      25, 199 4.

                    Enter this 28th day of July, 1995.

                                  /s/ Frank L. Slau ghter

                                  FRANK L. SLAUGHT ER, Judge


             On August 4, 1995, the State filed a “Notice of Appeal” from the

above order which stated that the appeal was as of right in that the order had the

substantive effect of dismissing the indictments in Docket Nos. S37,280 and

S37,350.




                                         -6-
              The record in this appeal does not contain any order which

specifically dismissed either indictment or which specifically grants relief pursuant

to Rule 6 0, Ten nesse e Rules of Civil Proc edure, in Docke t No. S3 5,683.



              W e agree with the State’s assertions that the proper issue to be

considered is whethe r or not the “default jud gmen t” in the habitu al mo tor veh icle

offender case was effective at the time of the alleged offen ses in Nove mber,

1994, and not whether or not the ju dgme nt was a “final judgm ent.” Our Supreme

Court has held that “a judgment is final ‘when it decides and disposes of the

whole merits of the case leaving nothing for the fu rther judg ment o f the court.’

Saunde rs v. Metrop olitan Go v’t. of Nashville & Davidso n Cou nty, 214 Tenn. 703,

383 S.W .2d 28, 31 (19 64).” Richardson v. Tennessee B rd. of Dentistry, 913

S.W.2d 446, 460 (Tenn. 1995). It is clear from the record in this case that the

defau lt judgment in the habitual motor vehicle offender case involving the

Defendant was a “final judgment” as defined in Richardson. How ever, it is

apparent from the record that the issue at the trial court le vel, and in this court,

is whether the de fault judgm ent wa s not e ffective b ecau se the provisio ns of R ule

58, Te nness ee Ru les of Civil Pro cedure , had no t been p roperly follow ed.



              Rule 1 of the Tennessee Rules of App ellate P roced ure pro vides in

part that, “[t]hese rules shall be construed to secure the just, speedy, and

inexpensive determination of every proceeding on its merits.” Furthermore, the

Advisory Commission Comments to the Tennessee Rules of Ap pellate

Procedure, Rule 1 , provid e in part that, “it is the policy of these rules to d isregard

technica lity in form in order that a just, speedy, and inexpensive determination of

every ap pellate pro ceedin g on its m erits ma y be obta ined.”

                                           -7-
             Therefore, even though the order appea led from by the S tate is

somewhat lacking itself in “finality” (it neither grants nor denies relief under Rule

60, Tennessee Rules of Civil Procedure, or grants or denies the Defendant’s

Motion to Dism iss Ind ictme nts), we will address the issue presented on its merits.



             In order for a Defendant to be convicted of the offense of violation

of the Motor Vehicle Habitual Offenders Act, three (3) prereq uisites m ust be m et.

Initially, a court of competent jurisdiction must find that the Defendant is an

habitual motor vehicle offender pursuant to Tennessee Code Annotated Section

55-10-613. Secondly, a judgment declaring the Defendant an habitual motor

vehicle offender must become effective. State v. Donnie M. Jacks, No. 03C01-

9108-CR-00256, Ande rson C ounty , (Ten n. Crim . App. K noxville , filed April 28,

1992). Finally, it must be proven beyond a reasonable doubt that the Defendant

operated a motor vehicle, after the judgment has become effective, as prohibited

by the habitual motor vehicle offender statute. Tenn. Code Ann. § 55-10-616 See

State v. Scott D. Vann, No. 03C01-9403-CR-00125, Jefferson County, slip. op.

at 3 (Te nn. Crim . App., Kn oxville, filed De cemb er 15, 19 94).



             In Banks ton v. State , 815 S.W.2d 213, 216 (Tenn. Crim. App. 1991),

it is held that actions under the Habitual Mo tor Ve hicle O ffende r Act ar e civil in

nature.   Therefore, the Tennessee Rules of Civil Procedure govern the

effectivene ss of judg ments under th e Hab itual Moto r Vehicle Offend er Act.



             Rule 58, Ten nesse e Rules of Civil Proc edure, provides that a

judgment is effective when it is ma rked on its face b y the clerk as filed for entry,

and the judgment contains one of the following:

                                          -8-
         (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 th at a
               copy h as be en se rved o n all oth er part ies or c ouns el.

(emph asis add ed).


               In the present case, the default judgment bears the signature of the

judge. Also it bears the sign ature of an As sistant District Attorney, along w ith a

certificate of service by him that a copy of the judgment had been sent pursuant

to Rule 58 and Rule 5 of the Tennessee Rules of Civil Procedure to Defendant

at his last known address. (emphasis added). As mentioned above, the

address of the Defendant on the certificate of service wa s listed as 121 C lark

Street, Kingsport, Tennessee 37660.



               Rule 5.02, Tennessee Rules of Civil Procedure, sets forth how

service of pleadings m ay be ma de.         Rega rding service by m ail, the Rule

spec ifically states that service can be accomplished by mail to the “person’s last

known address” or if no address is known, by leaving a copy with the clerk of the

court.



               The State argues that Rule 5, Tennessee Rules of Civil Procedure,

provides that no service m ust be ma de upon a ny party adjudged in default for

failure to appear. W hile this is a correct reading of the rule, and wh ile this court

noted this provision of the law in Vann , this court also held “Rule 5.01 allows

defau lt judgments to take effect without any service as long as the clerk complies

with Rule 58.” Vann, No. 03C01-9403-CR-00125, slip. op. at p. 4-5 (em phas is

                                          -9-
added). Likewise , comp liance with Rule 5 8 by co unse l is necessary in order for

a defau lt judgme nt to be effe ctive.



              The present case is distinguishable from Vann because the issue is

whether or not couns el for the State com plied with Rule 58 even thoug h there

was a failure to serve a copy of the judgment upon Defendant at his last known

address. In this case, the “last known address” of the Defendant was the Sullivan

Coun ty Jail, as indicated on the document designated as a “summons” and as

reflected in the return by the deputy sheriff of service of the petition on the

Defen dant. The Assistant District Attorney General did n ot serve or even attempt

to serve a copy of the judgment on the Defendant at his “last known address” and

therefore did not comply with Rule 5 of the Tennessee Rules of Civil Procedure.

Failing to com ply with Rule 5 , the jud gme nt there fore did not co mply with Rule 58,

Tennessee Rules of Civil Procedure, even though the certificate of service

indica ted tha t service had b een c omp leted b y mail.



              In Masters by Masters v. Rishton, 863 S.W.2d 702 (Tenn. Ct. App.

1992), there was a similar problem addressed by the Tennessee Court of

Appeals, We stern Section. An order grantin g a m otion fo r sum mary judgm ent in

favor of certain defendants had been entered and it contained a certificate of

service certifying that a copy of the order had been served upon all parties of

interest in the proceeding. However, during oral argument, it became apparent

to the court that the order was never served upon the plaintiffs. Notwithstanding

the fact that the certifica te of se rvice ind icated com plianc e with R ule 58, up on it

becoming clear th at in fac t there h ad no t been com pliance with Rule 58, the

Court of Appeals held, “We believe that under the rationale fo r Rule 58 , a

                                           -10-
judgment which is not ac tually se rved o n a pa rty within a reas onab le time after

it has been filed, even though it contains a certific ate of service, is not a final

appealab le judgmen t.” Rishton, 863 S.W .2d at 705 .



             As a result of the failure by the State to properly serve a copy of the

judgment declaring Defendant to be an habitual motor vehicle offender, the

judgment was not prop erly entered, and was therefore not in effect at the time of

the alleged offenses in November 1994. The trial court should have granted the

relief requested by the Defendant pursuant to Rule 60.02 and ordered a proper

entry of the judgment under Rule 58, Tennessee Rules of Civil Procedure.

Therefore, this case is remanded for proper entry of the judgment under Rule 58.

Since there was no effective habitual motor vehicle offender order in effect at the

time of the Defendant’s alleged offenses in November 1994, the charges of

violation of the Habitual Motor Ve hicle Offender Act in indictments numbered

S37,280 and S37,350 must be dismissed.



             According ly, the judgm ent of the trial court sho uld be m odified to

grant the Defendant’s request for relief under Rule 60, Tennessee Rules of Civil

Procedure regarding th e judg men t in Doc ket No . S35,6 83, an d this m atter is

therefore remanded for entry of a proper judgment in that case, and the charges

against Defendant alleging violations of the Habitual Motor Vehicle Offender Act

in indictments numbers S37,280 and S37,350 are dismissed.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge




                                        -11-
CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
DAVID G. HAYES, Judge




                             -12-
