            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE               FILED
                               JANUARY SESSION, 1997
                                                             September 30, 1997

                                                             Cecil W. Crowson
STATE OF TENNESSEE,                )     C.C.A. NO. 01C01-9604-CC-00167
                                                           Appellate Court Clerk
                                   )
      Appellee,                    )
                                   )
                                   )     FRANKLIN COUNTY
VS.                                )
                                   )     HON. BUDDY D. PERRY
MICHAEL A. BASKETTE,               )     JUDGE
                                   )
      Appellant.                   )     (Direct Appeal-Driving on Revoked
                           )       License)



FOR THE APPELLANT:                       FOR THE APPELLEE:

PHILIP A. CONDRA                         JOHN KNOX WALKUP
District Public Defender                 Attorney General and Reporter
12th Judicial District
P. O. Box 220                            M. ALLISON THOMPSON
Jasper, TN 37347                         Counsel for the State
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         J. MICHAEL TAYLOR
                                         District Attorney General

                                         WILLIAM COPELAND
                                         Assistant District Attorney
                                         1 South Jefferson Street
                                         Winchester, TN 37398




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION

       A Franklin County Circuit Court jury convicted Appellant Micheal B. Baskette

of driving on a revoked license. As the result of two prior convictions in Davidson

County for driving on a revoked license, Appellant was subsequently convicted in a

bench trial for driving on a revoked license third offense. Appellant was sentenced

to sixty days in the county jail and a fine imposed. In this appeal, Appellant claims

that his conviction for driving on a revoked license third offense was improperly

based upon a prior guilty plea in which there was no effective waiver of counsel. For

the reasons set forth, the judgment of the trial court is affirmed.



                            I. FACTUAL BACKGROUND

       On April 22, 1994, Appellant was stopped at a roadblock on Highway 127 in

Franklin County, Tennessee. When approached by a Tennessee Highway Patrol

officer, Appellant reportedly appeared to be intoxicated. The officer instructed

Appellant to pull his car into a parking lot. Appellant was then given a series of field

sobriety tests by the officer. As a result of these tests, Appellant was arrested and

charged with DUI. When the officer checked Appellant’s identification information

the check revealed that Appellant’s driver’s license was revoked; subsequently

Appellant was charged with driving on a revoked license.

       Appellant was indicted by the Grand Jury of Franklin County in a four count

indictment, which charged Appellant with driving under the influence, driving under

the influence, third offense, driving on a canceled, suspended, or revoked license,

and driving on a canceled, suspended, or revoked license, third offense. At trial on

these charges, the jury returned a verdict of not guilty on the count involving driving

under the influence and guilty on the count involving driving on a canceled,

suspended or revoked license. The fourth count of driving on a canceled,

suspended or revoked license third offense was tried by the judge. During the

                                           -2-
bench trial, Appellant pointed out to the judge that the waiver of attorney which

appeared on the reverse side of the driving on a revoked license citation dated

February 18, 1991 seemed irregular, because it did not list any of the procedural

safeguards that accompany a constitutional waiver. The judge agreed as to the

irregular appearance of the waiver, but stated that the court in which the matter was

heard would have a record of that proceeding. Appellant was found guilty of driving

on a revoked license third offense.



                 II. ATTACK UPON AN UNDERLYING CONVICTION

       Appellant alleges that the trial court erred in relying on the February 1991

guilty plea which does not affirmatively establish on the face of the plea that the

statutory and constitutional protections required for an effective plea were ever

undertaken. Appellant argues that because the record does not establish a valid

waiver of the Appellant’s right to counsel at the plea proceeding in February 1991,

this Court should reverse and dismiss his conviction for driving on a revoked license,

third offense.

       In State v. Prince, 781 S.W.2d 846, the Supreme Court addressed this issue

in holding that a defendant must collaterally attack any infirm underlying convictions

before a he can attack a subsequent conviction based on those prior convictions.

       [I]t is incumbent upon a defendant to establish the invalidity of
       prior guilty pleas before he can procedurally launch a collateral
       attack in a subsequent habitual criminal sentence on that
       basis. If he has not previously done so it must be established
       at an appropriate hearing for that purpose that he has not
       knowingly and understandingly waived any grounds he may
       have which would undermine the validity of a prior guilty plea.
       The fact cannot be established on a silent record. Boykin, 395
       U.S.[238,] at 242, 89 S.Ct.[1709,] at 1712. The petition must
       be filed in the court where the earlier conviction took place to
       attack the constitutional validity of the prior conviction. A
       defendant successful in such a proceeding may then expose
       the enhanced sentence on the subsequent conviction to a
       collateral attack as well.




                                         -3-
State v. Prince, 781 S.W.2d 846, 852 (Tenn. 1989).


       Just as the underlying convictions in Prince were facially valid, the

February 1991 conviction Appellant seeks to challenge is facially valid. The

Appellant’s signature does indeed appear under the waiver of counsel portion of

the document. Therefore, it is facially valid. See State v.McClintock, 732

S.W.2d 268 (Tenn. 1987); State v. Cottrell, 868 S.W.2d 673 (Tenn. Crim. App.

1992). This Court is unable to determine the merit of his allegation regarding the

1991 guilty plea upon this record. The appropriate route for overturning a prior

conviction as a result of an invalid waiver of the right to counsel is to file a post-

conviction proceeding within the statute of limitations.

       Because Appellant has failed to follow the procedure set out by the

Tennessee Supreme Court in State v. Prince, the judgment of the trial court is

affirmed.




                             _________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                          -4-
