         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 11, 2007

               STATE OF TENNESSEE v. JEFFREY LEE FIELDS

                  Direct Appeal from the Circuit Court for Carroll County
                         No. 05CR122     C. Creed McGinley, Judge



                  No. W2006-01378-CCA-R3-CD - Filed February 12, 2008


The defendant, Jeffrey Lee Fields, appeals the order declaring him a motor vehicle habitual offender
(MVHO) by default judgment. He contends, and the State agrees, that the Rules of Civil Procedure
were not followed regarding service of process, notice of hearing, notice of default judgment, notice
of entry and service of judgment. Further, he contends there were insufficient convictions to support
a judgment declaring him a motor vehicle habitual offender. After review, we conclude that a
conviction on appeal is a final conviction for the purpose of determining MVHO status; however,
because the proper procedures were not followed in obtaining the judgment declaring the defendant
a motor vehicle habitual offender, it should be vacated.

        Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court Vacated

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN , JJ., joined.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Jeffrey Lee Fields.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Hansel J. McCadams, District Attorney General; and Stephen D. Jackson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

       The case involves a default judgment taken, declaring the defendant a motor vehicle habitual
offender. This appeal was taken directly from the entry of the default judgment.

       The Rules of Civil Procedure apply to proceedings under the Motor Vehicle Habitual
Offender Act. Tenn. Code Ann. § 55-10-601. As the State concedes, the defendant was not properly
served with the petition and show cause order and received no notice of a hearing date, no notice
of default judgment date, and no notice of entry and service of judgment. Failure to follow the
proper procedure demands that the judgment be vacated.
        Upon the filing of a petition by the State to declare an individual a MVHO, a trial court shall
make an order directing the named individual to appear before the court to show cause why he or
she should not be barred from operating a motor vehicle. See Tenn. Code Ann. § 55-10-608(a). The
trial court shall order the defendant to appear before it on a certain date and time, not less than thirty
days after the date of service of the petition and order. See Tenn. Code Ann. § 55-10-608(b). A
copy of both the petition and the order shall be served on the named individual. See Tenn. Code
Ann. § 55-10-609.

       Despite the failure to properly serve the defendant, a default judgment was entered against
him on June 6, 2006.
       Before taking a default judgment, Tennessee Rule of Civil Procedure 55.01 requires that:
       [a]ll parties against whom a default judgment is sought shall be served with a written
       notice of application for judgment at least five days before the hearing on the
       application, regardless of whether the party has made an appearance in the action.
No such notice was served on the defendant in the instant case.

        Finally, as to this issue, there is no record that the default judgment, as entered, was served
upon the defendant. Tennessee Rule of Civil Procedure 58 provides three ways to enter judgment:
1) the judge’s signature and the signatures of all the parties or counsel; or 2) the judge’s signature,
the signature of one party or counsel and a certificate of the clerk that a copy of the proposed order
has been served on the other parties or counsel, or 3) the judge’s signature and a certificate of the
clerk that a copy has been served on all other parties or counsel. In this case, the judgment was
signed by the trial judge and the Assistant District Attorney but was not signed by the defendant or
the defendant’s counsel. Nor is there a certificate of the clerk indicating that a copy of the proposed
order was served on the defendant or his counsel.

       Further, the defendant claims that one of his convictions was not a final conviction and,
therefore, could not be used to support the MVHO judgment.

       The State and defendant agree that the convictions for driving under the influence (DUI) and
driving with a cancelled, suspended license were committed on November 4, 2001, and can only
count as one conviction pursuant to Tennessee Code Annotated section 55-10-604(b). The
defendant also has an additional conviction for DUI on September 27, 2001, which is uncontested.

        The defendant contends that the August 22, 2005 DUI conviction was not final at the time
the court considered the petition and entered the order because it was on appeal. The defendant’s
direct appeal of his August 22, 2005, DUI conviction was, in fact, affirmed on April 5, 2007. See
State v. Jeffrey Lee Fields, No. W2005-02128-CCA-R3-CD, 2007 WL 1028640, at *1 (Tenn. Crim.
App. Apr. 5, 2007).

        The question is whether a conviction on appeal may be considered as a final conviction and
appropriate for the trial court to consider when determining MVHO status. The answer is found in
State v. Sneed, 8 S.W.3d 299 (Tenn. Crim. App. 1999), a case dealing with the identical question.


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In Sneed, this court held that a conviction on appeal counted as a final conviction for determination
of MVHO status. We cannot distinguish the facts in the instant case from those in Sneed.

                                            Conclusion

       For the reasons heretofore stated, the judgment declaring the defendant a motor vehicle
habitual offender is vacated.



                                                      ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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