         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 8, 2008

                   STATE OF TENNESSEE v. TYRONE NEELY

                      Appeal from the Criminal Court for Shelby County
                            No. P-13376    W. Otis Higgs, Judge


                    No. W2007-00671-CCA-R3-CD - Filed April 23, 2008


The Appellant, Tyrone Neely, appeals the Shelby County Criminal Court’s denial of his petition to
reinstate driving privileges, which were revoked after he was declared a motor vehicle habitual
offender (MVHO) on October 20, 1994. In December 2006, Neely filed a petition to reinstate his
driving privileges, pursuant to an amendment to the reinstatement of license statute, Tennessee Code
Annotated section 55-10-615(c), which permits immediate reinstatement of driving privileges when
one of the underlying convictions which qualifies a person for MVHO status is not enumerated in
Tennessee Code Annotated section 55-10-603(2)(A). In his petition, Neely asserted that his
underlying convictions for driving on a cancelled, suspended, or revoked license, were not qualifying
offenses of Tennessee Code Annotated section 55-10-603(2)(A); therefore, he was entitled to
reinstatement. At the scheduled hearing, the trial court summarily denied the petition without
allowing Neely to present proof regarding the prior convictions. Neely appeals this ruling. On
appeal, the State concedes, and we agree, that it is necessary that the case be remanded to the trial
court for a full hearing to determine the nature of the qualifying convictions and whether Neely is
entitled to immediate restoration of his driving privileges as provided by Tennessee Code Annotated
section 55-10-615(c). Accordingly, the judgment of the trial court is vacated and remanded.

        Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated and Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C. MCLIN ,
JJ., joined.

Andrew E. Bender, Memphis, Tennessee, for the Appellant, Tyrone Neely.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                            OPINION

                          Factual Background & Procedural History
       On July 22, 1994, the State filed a petition to declare the Appellant a motor vehicle habitual
offender. The State submitted the following convictions in support of its petition:

               [The Appellant] was convicted on March 23, 1994 in the SHELBY COUNTY
       GENERAL SESSIONS for the offense of violating T.C.A. 55-50-504, driving while
       license cancelled, suspended or revoked[,] Docket Number 94005974[,] the offense
       having been committed on January 5, 1994.

              [The Appellant] was convicted on February 8, 1993 in the SHELBY
       COUNTY GENERAL SESSIONS for the offense of violating T.C.A. 55-50-504,
       driving while license cancelled, suspended or revoked[,] Docket Number
       92311025[,] the offense having been committed on November 6, 1992.

              [The Appellant] was convicted on April 28, 1989 in the SHELBY COUNTY
       GENERAL SESSIONS for the offense of violating T.C.A. 55-10-401, driving while
       under the influence of an intoxicant or drug[,] Docket Number 89035014[,] the
       offense having been committed on February 4, 1989.

By order entered on October 20, 1994, the Appellant was declared a motor vehicle habitual offender.

        On December 20, 2006, the Appellant filed a petition to restore his driving privileges. His
petition alleged “[t]hat the underlying [o]rder declaring [the Appellant] to be a habitual motor
vehicle offender is defective because reliance was placed upon prior convictions for the offense of
driving while license revoked, suspended, or cancelled which should be excluded based upon a
change [amendment] in law.” At the scheduled hearing, as well as in his supporting memorandum
of law, the Appellant, through counsel, admitted that he currently faced pending charges of driving
while a motor vehicle habitual offender. With regard to this pending charge, the record further
reflects that the Appellant has been given the option by the Shelby County District Attorney’s office
to obtain an order restoring his driving privileges, at which time the felony violation charge “will be
either dismissed or reduced to a misdemeanor offense.” However, if he retains his status as a motor
vehicle habitual offender, he will face prosecution for the felony.

       At the February 9, 2007 hearing, the following exchange occurred between the trial court and
the Appellant’s counsel regarding the pending 2006 charge of driving while a motor vehicle habitual
offender:

       Trial Court:    So when is that case set?

       Counsel:        This morning, Judge, and they said for me – Respectfully, Judge,
                       because –

       Trial Court:    Sir, I’m just asking you –



                                                   -2-
       Counsel:       Yes.

       Trial Court:   – when was it set?

       Counsel:       It was set this morning.

       Trial Court:   Has it been disposed of?

       Counsel:       No. They’re waiting for us to –

       Trial Court:   I’m not – I’m going to continue this case for a week to let you dispose
                      of this case. I’m not going to do it with a pending case. I’ve already
                      told you that.

       Counsel:       Well, Judge, the only thing that’s –

              ....

       Trial Court:   The Motion is denied.

       Counsel:       Judge can –

       Trial Court:   Your request is denied.

The written order denying the Appellant’s petition to reinstate his driving privileges recites as
follows:

               AND IT APPEARING TO THE COURT that the [Appellant] was declared
       to be an habitual motor vehicle offender on the basis of a Consent Order declaring
       him to be an habitual motor vehicle offender which was entered in this cause on
       October 20, 1994, and that the parties have stipulated that one of the convictions
       relied upon in the Petition to establish that [the Appellant] met the criteria as an
       habitual motor vehicle offender was a conviction for driving while license revoked
       or suspended on April 29, 1989 [sic] did not result from an offense enumerated in
       T.C.A. § 55-10-603(2)(A), although, by stipulation, the conviction for driving while
       license revoked or suspended on March 23, 1994 did result from an offense
       enumerated in T.C.A. § 55-10-603(2)(A).

               AND IT FURTHER APPEARING TO THE COURT that the [Appellant] was
       arrested for an unrelated offense of driving while an habitual motor vehicle offender
       on November 14, 2006 under Shelby County General Sessions booking No.
       06135786 which was brought to the Court’s attention and thereafter considered by



                                                 -3-
       the Court, and that as a result of that re-arrest, the Defendant is not, in the discretion
       of the Court, a proper person to be granted restoration of his driving privileges.

The Appellant filed a timely notice of appeal.

                                               Analysis

        The Appellant argues that the trial court “lacked discretion” to deny his petition to reinstate
driving privileges. He contends, relying upon a 2000 amendment to the Motor Vehicle Habitual
Offender Act, at Tennessee Code Annotated section 55-10-615(c), that the convictions upon which
his 1994 designation as a motor vehicle habitual offender was based required the trial court to grant
his petition for reinstatement of driving privileges. He cites to the trial court’s order that “it was
stipulated by the parties that one of the underlying convictions used to declare the Appellant to be
a motor vehicle habitual offender was one that must be excluded from consideration,” and he relies
upon this finding to argue that the court was required to restore his driving privileges in Tennessee
pursuant to statute. The Appellant further asserts that the trial court improperly based the denial of
his petition solely on his 2006 “unrelated arrest” for driving while an habitual offender. The State
responds by conceding that remand is necessary in order that the trial court “make findings of fact
on the underlying violations that led to the [Appellant]’s two convictions for driving on a revoked
license.”

        The Motor Vehicle Habitual Offender Act (“the Act”) provides as follows regarding a
petition for reinstatement of driving privileges by one who has been declared a motor vehicle
habitual offender:

       (a) In no event shall a license to operate motor vehicles in this state be issued to an
       habitual offender for a period of three (3) years from the entry date of the order of the
       court finding such person to be an habitual offender. In no event shall a license to
       operate a motor vehicle in this state be issued to an habitual offender until such
       habitual offender has met all requirements which the provisions of the financial
       responsibility law may impose.

       (b) At the expiration of three (3) years from the date of any final order of a court,
       entered upon the provisions of this part, finding a person to be an habitual offender
       and directing such person not to operate a motor vehicle in this state, such person
       may petition the court where found to be an habitual offender or any court of record
       having criminal jurisdiction in the county in which such person then resides, for
       restoration of the privilege to operate a motor vehicle in this state. Upon such
       petition, and for good cause shown, such court may, in its discretion, restore to such
       person the privilege to operate a motor vehicle in this state upon such terms and
       conditions as the court may prescribe, subject to other provisions of law relating to
       the issuance of operators’ or chauffeurs’ licenses.



                                                  -4-
T.C.A. § 55-10-615(a),(b) (2006). In 2000, the following language was added to the Act:

         Notwithstanding subsection (a) or (b) or any other provision of law to the contrary,
         if a person is declared to be a habitual motor vehicle offender and one (1) or more of
         the requisite convictions was for . . . driving on a cancelled, suspended or revoked
         license as prohibited by § 55-50-504 where the underlying violation of § 55-50-504
         was not an offense enumerated in § 55-10-603(2)(A),1 such person may petition the
         court where such habitual offender finding occurred or any court of record having
         criminal jurisdiction in the county in which such person then resides for immediate
         restoration of the privilege to operate a motor vehicle in this state. After reviewing
         such petition, if the court finds that one (1) or more of such requisite convictions was
         for . . . § 55-50-504 where the underlying offense was not one (1) enumerated in §
         55-10-603(2)(A), then the court shall restore to such person the privilege to operate
         a motor vehicle in this state upon such terms and conditions as the court may
         prescribe, subject to other provisions of law relating to the issuance of operators’ or
         chauffeurs’ licenses.

Id. at (c).

        First, we would observe that we are unable to reconcile inconsistencies in the trial court’s
order with other documents included in the record. The order identifies April 29, 1989, as the date
on which the Appellant was convicted for the offense of driving while license was cancelled,
suspended, or revoked, but the record demonstrates that the conviction corresponding with this date
was actually for the offense of driving under the influence. Finally, the trial court’s order recites that
the April 29, 1989 conviction “did not result from an offense enumerated in T.C.A. 55-10-
603(2)(A),” which if correct, would entitle the Appellant to “immediate restoration of his driving
privileges,” as provided by Tennessee Code Annotated section 55-10-615. Again, the order provides
that the March 23, 1994 conviction “did result from an offense enumerated in T.C.A. 55-10-
603(2)(A).” No stipulation or other proof is included in the record supporting either of these
findings with regard to these two convictions. Indeed, the qualifying nature of these two convictions
was the sole reason for the hearing, which was prematurely terminated by the trial court.

         Accordingly, this case is remanded to the trial court for findings of fact to determine the
qualifying nature of the Appellant’s two convictions for driving on a revoked license. If the two
underlying convictions are enumerated in Tennessee Code Annotated section 55-10-603(2)(A), then
the trial court has the discretion to determine whether to restore the Appellant’s driving privileges.
If one or both of the underlying convictions are not enumerated in Tennessee Code Annotated


         1
          Tennessee Code Annotated section 55-10-603(2)(A) enumerates fifteen offenses for driving on a cancelled,
suspended, or revoked license which would preclude reinstatement of driving privileges under subsection (c). One such
example is a conviction for driving on a cancelled, suspended, or revoked license, if the underlying offense in such
cancellation, suspension, or revocation resulted from a DUI, in violation of Tennessee Code Annotated section 55-10-
401. T.C.A. § 55-10-603(2)(A)(viii) (Supp. 2007).

                                                        -5-
section 55-10-603(2)(A), then the trial court “shall” restore the Appellant’s driving privileges, as
required by Tennessee Code Annotated section 55-10-615(c).

                                         CONCLUSION

        Based on the foregoing, the order of the Shelby County Criminal Court is vacated, and the
case is remanded for further proceedings consistent with this opinion.



                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




                                                -6-
