     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                         MAY 1998 SESSION
                                                 FILED
                                                    July 17, 1998

                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,         )
                            ) C.C.A. No. 02C01-9709-CR-00339
     Appellee,              )
                            ) Shelby County
V.                          )
                            ) Honorable W . Fred Axley, Judge
                            )
RALPH D. COOPER,            ) (Habitual Motor Vehicle Offender)
                            )
     Appellant.             )




FOR THE APPELLANT:             FOR THE APPELLEE:

Robert M. Brannon, Jr.         John Knox Walkup
Attorney at Law                Attorney General & Reporter
295 Washington Avenue
Suite 3                        Douglas D. Himes
Memphis, TN 38103-1911         Assistant Attorney General
                               425 Fifth Avenue North
                               Nashville, TN 37243-0493

                               William L. Gibbons
                               District Attorney General

                               Rosemary Andrews
                               Assistant District Attorney General
                               201 Poplar Avenue, Third Floor
                               Memphis, TN 38103




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                      OPINION


       Alleging that the appellant, Ralph D. Cooper, had been convicted of three

qualifying vehicular offenses during a five-year period, the state, pursuant to

Tennessee Code Annotated § 55-10-601, filed a petition on April 16, 1997

seeking to declare the appellant a habitual motor vehicle offender. On August

26, 1997, a hearing on the petition was held. At the conclusion of the hearing,

the trial court, finding no material disputes of fact, granted the state’s petition

declaring the appellant a habitual motor vehicle offender.



       The appellant presents four issues for our review on appeal: (1) whether

the trial court erred in failing to afford him a trial by jury; (2) whether the trial court

erred by failing to grant a continuance based upon his filing of a post-conviction

petition attacking one of the state’s qualifying offenses in its petition to declare

him a habitual motor vehicle offender; (3) whether the trial court erred in failing to

exclude records of the July 2, 1991 conviction which were offered by the state in

support of its petition; and (4) whether the trial court erred in its declaration of

him as a habitual motor vehicle offender, thereby violating the double jeopardy

clause of the United States and Tennessee Constitutions. We affirm.



       In his first issue, the appellant argues that the trial court improperly denied

his request for a jury trial. He contends that there are two material disputes of

fact which necessitate a jury trial: whether his filing of a post-conviction petition

created a material dispute of fact and whether the Ralph D. Cooper that the state

was attempting to declare a habitual motor vehicle offender was in fact him.



       The state asserts that the trial court properly denied the appellant’s

request for a trial. Citing State v. Everhart, 563 S.W.2d 795, 797-98 (Tenn.

Crim. App. 1978), the state maintains that “collateral attacks on the underlying

convictions are not proper at a habitual offender hearing.” It insists that the

appellant had three facially valid convictions at the time of the hearing.

                                            -2-
Therefore, there was no material dispute of fact created by the filing of the post-

conviction relief petition.



       With regard to the appellant’s contention that the state did not establish

identity, the state argues that the appellant “implicitly admitted to his convictions.”

It notes that the trial court commented during the hearing that “the defendant has

admitted that he has been punished on each and every one of the convictions.”

Thus, the state maintains that identity does not present a material dispute of fact

warranting a jury trial.



       From our review of the record, we must agree with the state. Everhart

plainly states that collateral attacks on convictions are not proper at a habitual

offender hearing.    Furthermore, we find nothing to indicate that the appellant is

not the same Ralph D. Cooper as the person in the three convictions. Thus, this

issue is without merit.



       In his second issue, the appellant contends that the trial court erred by

denying his motion for a continuance. He maintains that because he filed a post-

conviction relief petition challenging one of his convictions, the court should have

granted him a continuance until a decision of his petition had been rendered. He

argues that the trial court abused its discretion by denying him a continuance,

which “in effect punished and deprived [him] of due process of law by legally

barring him from operating a motor vehicle, while the validity of one of the

qualifying offenses was in material dispute.”



       The state asserts that the trial court did not abuse its discretion. It notes

that “the granting of a continuance rests in the sound discretion of the trial court.”

The state insists that the appellant’s post-conviction petition was immaterial to

the habitual offender hearing.




                                          -3-
        We agree with the state that the trial court did not abuse its discretion.

The appellant had three facially valid convictions at the time of the hearing; and

as the state notes in its brief, that is all that is required before the hearing can

proceed. This issue is without merit.



        Next, the appellant argues that the trial court erred by improperly admitting

evidence of the appellant’s 1991 conviction. He asserts that the state attempted

to introduce the 1991 conviction but that “it had not been properly authenticated,

and thereby should have been excluded under Rule 901 of the Tennessee Rules

of Evidence.” Furthermore, he contends that the evidence of the conviction was

inadmissible under evidence Rule 902 because it did not bear the official state

seal.



        The state maintains that the evidence of the appellant’s 1991 conviction

was properly admitted. It contends that the conviction was certified by the

deputy clerk of the general sessions court of Shelby County. The state

acknowledges that although the certification was signed, there was no seal

affixed. The state insists that Tennessee Rule of Evidence 901(b)(7) provides

that, as in this case, the certification of the deputy clerk provides evidence that

the copy of the conviction was from the general sessions court where such

records are kept. Furthermore, it argues that there is nothing in the record, or

from the appellant, to suggest that the copy of the 1991 conviction was false.

Thus, the evidence of the conviction was properly admitted.



        Although the seal was not affixed, the signed certification of the deputy

clerk was sufficient to indicate that the copy of the 1991 conviction was not false

or unreliable, especially in light of the appellant’s failure to provide proof to the

contrary. This issue is without merit.




                                          -4-
      Finally, the appellant in his fourth issue invites this Court to revisit the

issue of whether the Motor Vehicle Habitual Offenders Act violates double

jeopardy, noting that our Supreme Court has held that the Act does not violate

double jeopardy. State v. Conley, 639 S.W.2d 435 (Tenn. 1982). The state

argues that because the appellant fails to provide an argument for his request,

this issue is waived pursuant to Rule 10(b) of the Rules of the Court of Criminal

Appeals.



      We decline the invitation to revisit the issue of double jeopardy. This

issue is waived.



      Finding no error mandating reversal, we affirm the trial court’s judgment.




                                         -5-
                              ______________________________
                              PAUL G. SUMMERS, Judge


CONCUR:




___________________________
JOHN H. PEAY, Judge




___________________________
THOMAS T. W OODALL, Judge




                              -6-
