         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 12, 2006 Session

              STATE OF TENNESSEE v. JOSEPH KEVAN CLARK

                        Appeal from the Circuit Court for Dyer County
                               No. C05-85 Lee Moore, Judge



                  No. W2006-00245-CCA-R3-CD - Filed November 7, 2006


On July 21, 2005, the appellant, Joseph Kevan Clark, was convicted by a Dyer County jury of
violating Tennessee Code Annotated section 55-10-616, a section of the Motor Vehicle Habitual
Offender Act. On September 27, 2005, the appellant was sentenced to five years’ incarceration as
a Range III offender. He appeals the judgment, contending that his conviction is invalid because the
underlying order declaring him to be a motor vehicle habitual offender was not properly entered
pursuant to Tennessee Rule of Civil Procedure 58. Because we have previously held that an
individual must utilize the provisions of Tennessee Rule of Civil Procedure 60.02 to challenge an
order declaring the individual to be a motor vehicle habitual offender, we affirm the judgment of the
trial court. The appellant also contends that the five-year sentence imposed by the trial court was
excessive. Because the trial court appropriately considered both mitigating and enhancement factors,
we affirm the sentence imposed by the trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
JOHN EVERETT WILLIAMS, JJ., joined.

Jim W. Horner, District Public Defender and H. Tod Taylor, Assistant Public Defender, at trial, for
the appellant, Joseph Kevan Clark.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
Phillip Bivens, District Attorney General and Charles Dyer, Assistant District Attorney General, for
the appellee, State of Tennessee.



                                            OPINION

       On March 8, 1989, an order was issued declaring the appellant a motor vehicle habitual
offender (MVHO) pursuant to Tennessee Code Annotated section 55-10-613. It is undisputed that
this order contains only the signature of the issuing judge. There is no record of a certificate of either
counsel or a certificate of the clerk of court.
         Between the entry of the MVHO order and this case, the appellant had no fewer than five
judgments entered against him for driving while under an MVHO order. Despite its formal flaws,
the appellant did not challenge the validity of the underlying order at any of these prosecutions.
         On April 11, 2004, a grand jury indicted the appellant for operating a motor vehicle after
being declared a habitual offender, a violation of Tennessee Code Annotated section 55-10-616. At
his trial, after the State presented its case in chief, the appellant moved for a judgment of acquittal
on the grounds that the underlying habitual offender order was invalid under Tennessee Rule of Civil
Procedure 58. Because the appellant had notice of his habitual offender status, by virtue of his five
prior convictions for driving while a habitual offender, the trial court denied the appellant’s motion
for judgment of acquittal. During his testimony, the appellant confirmed that he was aware he had
been declared a habitual offender.
         Before jury deliberation, the appellant requested that the jury be instructed as to the
requirements for an effective habitual offender order. This motion was denied. On July 21, 2005,
the jury found the appellant guilty of operating a motor vehicle after being declared a habitual
offender. The appellant was subsequently sentenced to five years’ incarceration as a Range III
persistent offender. See Tenn. Code Ann. § 40-35-107.
         The appellant filed a renewed motion for judgment of acquittal on October 6, 2005, arguing
that the underlying order did not provide a legal basis for his conviction because it is invalid under
Tennessee Rule of Civil Procedure 58. At that time the appellant also moved for a new trial and an
arrest of judgment.
         On October 27, the appellant filed a supplemental motion for judgment of acquittal, new trial,
and arrest of judgment. In this supplemental motion, the appellant claimed that the trial court had
erred in refusing to grant his motion for a special jury instruction. Following a hearing, the trial
court denied the appellant’s motions on November 8. The order specifically noted that the appellant
had notice of his status as a habitual offender, and that the appellant could not collaterally attack the
underlying order “in this manner.”
         On appeal, the appellant contends that the trial court erred in finding that the underlying order
was a legally effective basis for his conviction. He also contends that the trial court erred in refusing
to grant a special jury instruction concerning the prerequisites of a valid order under Tennessee Rule
of Civil Procedure 58. Finally, the appellant contends that the five-year sentence imposed by the trial
court is excessive.

                                      II. Analysis
      A. Habitual Motor Vehicle Offender and the Tennessee Rules of Civil Procedure

        Tennessee Code Annotated section 55-10-603 defines certain repeat motor vehicle offenders
as “habitual offender[s].” Upon a finding that an individual is a habitual offender, a trial court must
enter an order declaring the individual as such and directing the Department of Safety to revoke the
individual’s driver’s license. Tenn. Code Ann. § 55-10-613. Tennessee Code Annotated section 55-
10-616(b) provides that it is a Class E felony for an individual to operate a motor vehicle while an
order declaring him/her to be a habitual offender is in effect.


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         Although prosecutions under Tennessee Code Annotated Section 55-10-616(b) are criminal,
the initial proceedings to declare a person an MVHO are civil and are governed by the Tennessee
Rules of Civil Procedure. State v. Malady, 952 S.W.2d 440, 444 (Tenn. Crim. App. 1996); Bankston
v. State, 815 S.W.2d 213, 216 (Tenn. Crim. App. 1991); Everhart v. State, 563 S.W.2d 795, 797
(Tenn. Crim. App. 1978). Tennessee Rule of Civil Procedure 58 provides:

       Entry of a 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 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.


Therefore, a habitual offender order must comport with Rule 58 if it is to form the basis for a
conviction under Tennessee Code Annotated section 55-10-616. State v. Paul C. Michael, No.
W2000-03015-CCA-R3-CD, 2002 WL 1558506 (Tenn. Crim. App., at Jackson, Jan. 8, 2002); State
v. Robert Edward Boling, No. 03C01-9511-CC-00347, 1997 WL 154076 (Tenn. Crim. App., at
Knoxville, Apr. 3, 1997); State v. Donnie M. Jacks, No. 03C01-9108-CR-00256, 1992 WL 84220
(Tenn. Crim. App., at Knoxville, Apr. 28, 1992).
       Because habitual offender orders are governed by Tennessee Rule of Civil Procedure 58, the
appropriate procedure for challenging a habitual offender order in Tennessee is to file a motion
pursuant to Tennessee Rule of Civil Procedure 60.02. Bankston v. State, 815 S.W.2d at 216. Rule
60.02 provides in pertinent part:

       On motion and upon such terms as are just, the court may relieve a party or the
       party’s legal representative from a final judgment, order or proceeding for the
       following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud
       (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other
       misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been
       satisfied, released or discharged, or a prior judgment upon which it is based has been
       reversed or otherwise vacated, or it is no longer equitable that a judgment should
       have prospective application; or (5) any other reason justifying relief from the
       operation of the judgment. The motion shall be made within a reasonable time, and
       for reasons (1) and (2) not more than one year after the judgment, order or proceeding
       was entered or taken.


Accordingly, a defendant who is prosecuted under Tennessee Code Annotated section 55-10-616 can
only obtain relief from an underlying habitual offender order if the defendant moves to set that order
aside pursuant to Rule 60. Donnie M. Jacks, 1992 WL 84220, at *1.



                                                 -3-
         Rule 60.02 motions cannot afford a basis for relief if filed unreasonably late. Paul C.
Michael, 2002 WL 1558506, at *3; State v. Michael Samuel Eidson, No. 03C01-9711-CR-00506,
1999 WL 160944, at *2 (Tenn. Crim. App., at Knoxville, Mar. 24, 1999). “The delay may be
unreasonable where the defendant knows of the judgment against him and offers no reason for his
failure to timely challenge the judgment.” Michael Samuel Eidson, 1999 WL 160944, at *2 (citing
Magnavox Co. v. Boles & Hite Constr. Co., 583 S.W.2d 611, 613-14 (Tenn. Ct. App. 1979)).
         Our decision in Paul C. Michael, 2002 WL 155806, is dispositive of the issue before this
Court. In that case, the defendant was convicted for violating Tennessee Code Annotated Section
55-10-616, but the underlying habitual offender order had been improperly entered under Rule 58.
Id. at *1. The defendant had twice been convicted of operating a motor vehicle while under the
habitual offender order, but at no time did he raise a Rule 60.02 motion to challenge the order. Id.
at *3. Rather, like the appellant in the case sub judice, the defendant moved for a judgment of
acquittal at his trial. Id. Because the defendant failed to challenge the order pursuant to Rule 60.02,
we affirmed his conviction. Id.
         Turning to the appellant’s claim, the appellant is correct that the underlying habitual offender
order is formally insufficient under Rule 58 because it contains only the signature of the issuing
judge. However, despite having notice of his status as a habitual offender for more than a decade,
the appellant has never challenged the order by filing a Rule 60.02 motion. Rather, like the
defendant in Paul C. Michael, the appellant attempted to collaterally attack the order by moving for
a judgment of acquittal, both during and after his trial for driving while adjudged as a habitual motor
vehicle offender. As we concluded in the case of Paul C. Michael, the appellant “may not obtain
relief in this manner.” Id. at *3.
         Because the appellant failed to properly challenge the underlying order declaring him a
habitual offender, we find that the order was a valid basis for his conviction and affirm the judgment
of the trial court.
         We also dismiss the appellant’s contention that the trial court erred in refusing to issue a
special jury instruction as to the prerequisites for a valid and effective judgment under the Tennessee
Rules of Civil Procedure. In effect, the appellant requested an instruction that would have allowed
the jury to decide on the legal validity of the order. The appellant’s request for a special jury
instruction represents an additional attempt to collaterally attack the validity of the underlying order,
in lieu of a properly entered Rule 60.02 motion. Accordingly, we find no error in the trial court’s
refusal to instruct the jury as to the Rule 58 requirements for a valid and effective order.


                                            B. Sentencing

       Appellate review of the trial court’s sentencing decision is conducted de novo on the record,
but with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-
410(d); State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The appellant has the
burden of proving that the sentence imposed was improper. State v. Gray, 960 S.W.2d 598, 610
(Tenn. Crim. App. 1997); State v. Shropshire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993); Tenn.
Code Ann. § 40-35-401, Sentencing Commission Comments.



                                                  -4-
        Because of his extensive prior criminal record, including five prior convictions for driving
while a habitual offender, the appellant qualifies as a persistent Range III offender pursuant to
Tennessee Code Annotated section 40-35-107. As a Range III offender convicted of a Class E
felony, the appellant was eligible for four to six years of incarceration. Tenn. Code Ann. § 40-35-
112(c)(5).
        At the appellant’s sentencing hearing, the trial court considered as a mitigating factor that the
appellant’s “criminal conduct neither caused nor threatened serious bodily injury.” Tenn. Code Ann.
§ 40-35-113(1). Pursuant to Tennessee Code Annotated section 40-35-114(2), the trial judge
considered as an enhancement factor the appellant’s extensive criminal history, which was recounted
in the pre-sentence report. Taking these factors into account, and finding that the appellant’s
criminal history outweighed the only mitigating factor, the trial court sentenced the appellant to five
years incarceration.
        The appellant contends that the five-year sentence is excessive. Tennessee Code Annotated
section 40-35-210(e) provides that when imposing a sentence, “the court must start at the minimum
sentence in the range, enhance the sentence within the range as appropriate for the enhancement
factors, then reduce the sentence in the range as appropriate for the mitigating factors.” Because he
presented a mitigating factor, and because the court considered only one enhancement factor, the
appellant argues that he should have been sentenced to the minimum in his range.
        When imposing a sentence, trial judges are instructed to consider both mitigating and
enhancement factors. Tenn. Code Ann. § 40-35-210(b)(5). However, “the weight given to any
existing factor is left to the trial court’s discretion so long as it complies with the purposes and
principles of sentencing and its findings are adequately supported by the record.” Shropshire, 874
S.W.2d 634, 642. See also Tenn. Code Ann. 40-35-210, Sentencing Commission Comments (“The
sentencing commission specifically did not designate any particular numeric value for the
enhancement and mitigating factors.”).
        The trial court did not err by granting greater weight to the enhancement factor in this case.
The appellant’s extensive prior criminal history is adequately recounted in the pre-sentence report.
The appellant has failed to meet his burden to show that the sentence was excessive. Accordingly,
we affirm the sentence imposed by the trial court.


                                            III. Conclusion

         Because the appellant failed to raise a timely Rule 60.02 challenge to the order declaring him
a habitual offender, the trial court did not err in its judgment that the order provided a sufficient basis
for the appellant’s conviction. We therefore affirm the judgment of the trial court. We also affirm
the trial court’s decision to sentence the appellant to five years as a Range III offender.


                                                         ___________________________________
                                                         JERRY L. SMITH, JUDGE




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