             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE                  FILED
                            JANUARY 1998 SESSION
                                                                    April 7, 1998

                                                              Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )
             Appellee,           )    No. 03C01-9708-CR-00354
                                 )
                                 )    Carter County
v.                               )
                                 )    Honorable Lynn W . Brown, Judge
                                 )
CHRISTOPHER G. LAMBERT,          )    (Certified question of law)
                                 )
             Appellant.          )


For the Appellant:                    For the Appellee:

David F. Bautista                     John Knox Walkup
District Public Defender              Attorney General of Tennessee
142 E. Market Street                         and
P.O. Box 996                          Elizabeth B. Marney
Johnson City, TN 37605                Assistant Attorney General of Tennessee
(AT TRIAL & ON APPEAL)                450 James Robertson Parkway
                                      Nashville, TN 37243-0493
Robert Oaks
Assistant Public Defender             David E. Crockett
Courthouse                            District Attorney General
Elizabethton, TN 37643                Route 19, Box 99
(AT TRIAL)                            Johnson City, TN 37601

                                      Kenneth Baldwin
                                      Assistant District Attorney General
                                      900 E. Elk Avenue
                                      Elizabethton, TN 37643




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



               The defendant, Christopher G. Lambert, appeals as of right from the

Carter County Criminal Court upon a certified question of law that is dispositive of the

cases involved. The defendant entered pleas of guilty to driving under the influence

(DUI), third offense, and three charges of driving in violation of an Habitual Motor

Vehicle Offender (HMVO) judgment that barred him from driving. He received an

effective sentence of three years in a community corrections program, including time

served of two hundred eight days, and was fined $1,130. The issue presented in the

order of certification is:

                      Whether the court erred in failing to set aside the
               defendant’s status as an Habitual Motor Offender and likewise
               erred by failing to dismiss the counts of the indictment charging
               the defendant with driving while classified as an Habitual Motor
               Offender.

The trial court is affirmed.



               The gist of the defendant’s complaint in the trial court related to the fact

that at the times he was served with the petition to declare him an habitual offender and

the Carter County hearing was held, he was in jail in Washington County. He

contended that the Washington County jailers would not transport him and that he is

entitled to have the judgment set aside as void or unfair under Rule 60.02, Tenn. R.

Civ. P. He acknowledged, though, that he had five prior DUI convictions and would be

subject to HMVO status at the hearing. Also, he indicated that he did not try to contact

anyone in Carter County about the problem and that he did nothing about the situation

once he got out of jail. The next action anyone took on his behalf occurred in February

1997, when counsel in the present case filed the motion that is in issue.



               The trial court concluded that the defendant’s claim related to the HMVO

judgment being voidable, but not void. It also found that the defendant waited



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approximately a year and nine months before filing his motion without any just cause for

the delay. It stated that no defense to the HMVO action existed under the proof. It

concluded that no relief was warranted under Rule 60.02.



              We agree with the trial court’s findings and conclusions. A motion for

relief under Rule 60.02, Tenn. R. Civ. P., for any reason that might otherwise justify

relief is contingent upon the motion being filed within a reasonable time. It is obvious

that the trial court concluded that there was unjustifiable delay and no just reason to set

the judgment aside under the circumstances. It was within the trial court’s discretion to

deny relief. See Day v. Day, 931 S.W.2d 936, 939-40 (Tenn. Ct. App. 1996). The

record sufficiently supports the trial court’s decision.



              In this appeal, the defendant raises for the first time that the record fails to

show that he was served with the default judgment, and he claims that the judgment

was not effective against him. See, e.g., State v. Robert Edward Boling, No. 03C01-

9511-CC-00347, Sullivan County (Tenn. Crim. App. Apr. 3, 1997); see also Tenn. R.

Civ. P. 58. However, the defendant cannot litigate one ground at trial, then assert

another ground on appeal. See, e.g., State v. Miller, 668 S.W.2d 281, 285 (Tenn.

1984); State v. Woods, 806 S.W.2d 205, 210 (Tenn. Crim. App. 1990). The claim now

raised by the defendant was not litigated in the trial court, and the state was given no

opportunity to address it. In any event, though, we believe that the judgment is facially

valid, including showing substantial compliance with Rule 58(2), Tenn. R. Civ. P.,

regarding entry of an effective judgment by including the trial court’s and state’s

counsel’s signatures and counsel’s certification of service of the judgment on the

defendant through the United States Mail.




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             In consideration of the foregoing and the record as a whole, the

judgments of conviction are affirmed.



                                               ____________________________
                                               Joseph M. Tipton, Judge



CONCUR:



_________________________
Gary R. Wade, Judge



_________________________
William M. Barker, Judge




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