         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                          OCTOBER 1998 SESSION         March 24, 1999

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,           *   C.C.A. # 03C01-9711-CR-00506

            Appellee,         *   Sullivan C ounty

VS.                           *   Hon. R. Jerry Beck, Judge

MICHAEL SAMUEL EIDSON, *          (Habitual Mo tor Vehicle Offen der)

            Appe llant.       *



For Appellant:                    For Appellee:

Gale K. Flan ary                  John Knox Walkup
Assistant Public Defender         Attorney General & Reporter
P.O. Box 839
Blountville, TN 37617             Ellen H. Pollack
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Cordell Hull Building
                                  Nashville, TN 37243

                                  Greg A. Newman
                                  Assistant District Attorney General
                                  P.O. Box 526
                                  Blountville, TN 37617




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                                  OPINION

                  The defendant, Michael Eidson, pled guilty to violating an order

declaring him to be an habitual traffic offender, reserving the following certified

question of law: whether the 1993 order declaring the defendant to be an habitual

traffic offender is void because the clerk's office failed to mark the order "filed" or

"filed for entry." See Tenn. R. Civ. P. 58. The trial court imposed a two-year

sentence to be served in TDOC. We affirm the judgment of the trial court.



                  On October 8, 1993, Criminal Court Judge E. P. Calhoun signed an

order declaring the defendant to be an habitual traffic offender. The order barred

the defendant from driving a motor vehicle until the defendant's driving privileges

had been reinstated. See Tenn. Code Ann. § 55-10-615. The defendant, who was

not represented by counsel, and the assistant district attorney general approved and

signed the contents of the order. A copy was made a part of the minutes of the

court. Judge Calhoun signed the minutes. The clerk did not stamp the order "filed"

prior to placing the order in the minutes.



                  In 1997, the grand jury returned an indictment charging that the

defendant operated a motor vehicle in violation of the order entered in 1993.1 The

defendant filed a motion to dismiss the indictment, claiming the 1993 order was

invalid. When the trial court overruled the motion to dismiss, the defendant pled

guilty, reserving the certified question of law challenging the validity of the traffic

offender order.



                  Initially, actions under the Motor Vehicle Offenders Act are civil in


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         The defendant was also charged and convicted of several other driving-related offenses; the
only convic tion on ap peal, how ever, is that fo r violating the h abitual traffic o rder on J anuary 30 , 1997.

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nature. Bankston v. State, 815 S.W.2d 213, 216 (Tenn. Crim. App. 1991). In

Bankston, this court ruled that one should mount any attack upon the habitual

offender judgment through Rule 60 of the Tennessee Rules of Civil Procedure:

              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.

Tenn. R. Civ. P. 60.02.



              Here, the defendant did not attack the order under Rule 60.02, Tenn.

R. Civ. P.; instead, he filed a motion to dismiss the indictment charging him with

violating the order. See Rule 12, Tenn. R. Crim. P. A collateral attack in a separate

proceeding such as this is not permissible. Everhart v. State, 563 S.W.2d 795, 797-

98 (Tenn. Crim. App. 1978). "'If the attack be collateral in its nature, an attack may

not be made even on the ground of fraud.'" Id. at 798 (citations omitted).



              Even if the defendant had proceeded under Rule 60, the challenge to

the order would have failed. The order declaring the defendant to be an habitual

traffic offender must comply with Rule 58, Tenn. R. Civ. P.:

                               ENTRY OF JUDGMENT
              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

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               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.
               . . . Following entry of judgment, the clerk shall make
               appropriate docket notations and shall copy the judgment
               on the minutes, but failure to do so will not affect validity
               of the entry of judgment.

(emphasis added). The advisory commission comments to the rule provide that "the

effective date of a judgment is the date of its filing with the clerk after being signed

by the judge, even though it may not be copied or entered on the minute book until a

later date."



               In our view, the clerk's failure to file stamp the order would generally

cause the order to be ineffective. The plain language of the rule provides that the

order becomes effective only after the clerk marks the order as filed. Tenn. R. Civ.

P. 58. See Teresa Mayrene King Mayes v. Gary Stephen Mayes, C.A. No. 03A01-

9404-CV-00121 (Tenn. App., at Knoxville, Jan. 11, 1995) (finding final judgment was

not effective because the clerk had not marked the judgment as filed for entry).



               The defendant did not, however, challenge the order in a timely

fashion. Under Rule 60.02, Tenn. R. Civ. P., the defendant must act to set aside

the order within a "reasonable time." Here, almost three years elapsed before the

defendant challenged the order. No reason is given for the delay. Moreover,

because the defendant placed his signature on the order, he was fully aware that he

had been prohibited from driving. See State v. Don D. Williams, No. 03C01-9404-

CR-00148 (Tenn. Crim. App., at Knoxville, Jan. 13, 1995) (the court found an eight-

year delay in challenging the traffic offender order was reasonable because the

order was a default judgment about which the defendant had no knowledge for

several years). The delay may be unreasonable where the defendant knows of the

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judgment against him and offers no reason for his failure to timely challenge the

judgment. Magnavox Co. v. Boles & Hite Constr. Co., 583 S.W.2d 611, 613-14

(Tenn. App. 1979). The three-year delay, under these circumstances, was

unreasonable.



             Accordingly, the judgment of the trial court is affirmed.



                                         __________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



________________________________
David H. Welles, Judge



________________________________
Thomas T. W oodall, Judge




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