             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON               FILED
                           APRIL 1997 SESSION
                                                     September 10, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,              )    No. 02C01-9611-CR-00393
                                 )
      Appellee                   )
                                 )    SHELBY COUNTY
V.                               )
                                 )    HON. JAMES C. BEASLEY, JR.,
SAMMY L. GOLDEN,                 )    JUDGE
                                 )
      Appellant.                 )    (Habitual Motor Vehicle Offender)
                                 )
                                 )


For the Appellant:                    For the Appellee:

Joseph S. Ozment                      John Knox Walkup
217 Exchange Avenue                   Attorney General and Reporter
Memphis, TN 38103
                                      Janis L. Turner
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493


                                      John W. Pierotti
                                      District Attorney General

                                      Lee V. Coffee
                                      Assistant District Attorney
                                      201 Poplar Street
                                      Suite 301
                                      Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                               OPINION


        Appellant, Sammy L. Golden, appeals as of right the Shelby County Criminal

Court’s order declaring him an habitual motor vehicle offender. See Tenn. Code Ann.

§§55-10-601 to -618. On appeal, he contends that the procedure outlined in the

Habitual Motor Vehicle Offender Act (“the Act”) violates the constitutional protection

against double jeopardy. He also challenges a 1991 amendment to the Act as the

application of an ex post facto law. We find no merit to either of appellant’s

arguments and affirm the ruling of the trial court.

        At the hearing on the State’s petition to declare appellant an habitual offender,

the State offered proof that appellant was convicted of driving under the influence in

1990 and again in 1992. In 1995, appellant was convicted of reckless driving. The

combination of these three offenses in a five year period was sufficient under the Act

for suspension of appellant’s driver’s license and declaration as an habitual motor

vehicle offender. See Tenn. Code Ann. §55-10-603(2)(A) (Supp. 1996). In contesting

the State’s petition, appellant filed a motion to dismiss based upon double jeopardy

grounds. After accepting proof and hearing argument, the trial court overruled the

motion and declared appellant an habitual motor vehicle offender.

        Appellant argues that the institution of a separate proceeding to adjudicate an

individual as an habitual motor vehicle offender, after conviction and sentence have

been pronounced on the triggering criminal acts, violates principles of double

jeopardy. Appellant does not refute the State’s authority to deprive a person of the

privilege to drive, rather he attacks the deprivation when accomplished in a separate

proceeding.1




        1
         In 1995, the legislature amended the statute to permit district attorneys to seek habitual motor
vehicle offender status against an offender at the same proceeding which determines the guilt or
innocen ce o n the offense m aking the offende r eligible for this sta tus. See Tenn. Code Ann. §55-10-
618(b) (Supp. 1996). This am endm ent sim ply provided an alternative procedure; the Sta te m ay still
pursue this classification of the offender in a separate proceeding. Tenn. Code Ann. §55-10-618(a)
(Supp. 1996 ).

                                                    2
       Our supreme court has previously addressed the double jeopardy argument

under the Act. State v. Conley, 639 S.W.2d 435 (Tenn. 1982). In Conley, the court

said that a proceeding to declare a defendant an habitual offender and revoke his

driving privileges does not subject the offender to double jeopardy. Id at 437. The

court explained that the prohibited multiple “punishment” at the heart of double

jeopardy is the deprivation of the liberty of a person or the imposition of a fine when

inflicted to vindicate public justice. Id at 436. Since revocation of a driver’s license is

nothing more than deprivation of a privilege, which is remedial in nature and not

intended to have the effect of imposing punishment, there is no double jeopardy. Id.

We find nothing significant about the fact that the withdrawal of this privilege may be

accomplished in a separate proceeding.

       Appellant urges us to reconsider the holding of Conley in light of more recent

United States Supreme Court authority on double jeopardy. See Montana

Department of Revenue v. Kurth Ranch, 511 U. S. 767, 114 S.Ct. 1937, 128 L.Ed.2d

767 (1994); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487

(1989). Contrary to appellant’s assertion, panels of this Court have reconsidered the

holding of Conley in light of this authority and reiterated its validity.2 See State v.

Milton Spears, Jr., No. 02C01-9606-CR-00197 (Tenn. Crim. App. at Jackson, July 10,

1997); State v. Randy A. McClure and Teddy G. Ownby, No. 03C01-9605-CC-00198

(Tenn. Crim. App. at Knoxville, January 29, 1997). See also State v. Jonathan

Malady, No. 02C01-9506-CR-00166 (Tenn. Crim. App. at Jackson, July 26, 1996)

(upholding Conley in light of authority on double jeopardy and civil forfeitures). In

similar fashion, we believe the rationale and holding of Conley remains sound.

Moreover, we are bound by rulings of our supreme court.

       In McClure, a panel of this Court evaluated the Act in light of Halper and also

considered recent Supreme Court authority on double jeopardy in the context of civil



       2
           W e realize that these opinions were not released until after appellant’s brief were filed.

                                                       3
forfeitures of property. In analogizing to civil forfeiture procedures, a panel of this

Court held that the forfeiture of a driver’s license, a civil proceeding intended to be

remedial in nature and not punitive, does not violate principles of double jeopardy.

Slip op. at 4. In Spears, a panel of this Court specifically considered the Conley

holding in terms of Halper and Kurth Ranch and found nothing to indicate that such

authority would change the holding of Conley. We agree that the authority upon which

the appellant relies would not alter our supreme court’s holding in Conley.

       Appellant also contends that application of the Act to his offense violates the

prohibition against ex post facto laws. The Act was amended in 1991 and enlarged to

encompass offenders who accumulated three of the enumerated offenses within a five

year period. Tenn. Code Ann. §55-10-603(2)(A) (Supp. 1992). Because one of

appellant’s qualifying convictions occurred prior to 1991, appellant argues that

application of the statute to him constitutes an ex post facto law. This argument is

without merit.

       The constitutional prohibition against ex post facto laws applies only to penal

statutes which punish the offender and are inapplicable to civil penalties. State v. Carl

G. Laney, et al, No. 03C01-9303-CR-00088 (Tenn. Crim. App. at Knoxville, November

23, 1993). As discussed above, the declaration of an individual as an habitual

offender is considered a civil penalty, not a criminal prosecution. Conley, 639 S.W.2d

at 437. See also Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).

Therefore, any contention that application of the statute is an ex post facto law is

untenable.

       Appellant argues that the rationale of Laney is inapplicable, reasoning that the

Act does impose a punishment “since the legislature has now determined that the

declaration is a sentence and a sentence equates to punishment.” This contention is

not supported by the citation of authority and we are unaware of any such indication




                                             4
by the legislature. The holding of Laney remains valid and the application of the

statute to appellant does not violate the provision against ex post facto laws.

       We conclude that both of appellant’s arguments are devoid of merit and affirm

the order of the trial court declaring appellant an habitual motor vehicle offender.



                                                 _______________________________
                                                 William M. Barker, Judge



____________________________
Joseph M. Tipton, Judge



____________________________
David G. Hayes, Judge




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