        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                        AUGUST SESSION, 1999           FILED
                                                        October 31, 1999
STATE OF TENNESSEE,          )      C.C.A. NO. 02C01-9901-CR-00015
                             )                       Cecil Crowson, Jr.
                                                   Appellate Court Clerk
      Appellee,              )
                             )
                             )      SHELBY COUNTY
VS.                          )
                             )      HON . JAME S C. B EASLE Y, JR.,
BAILEY R. AGNEW,             )      JUDGE
                             )
      Appe llant.            )      (Habitual Moto r Vehicle Offender)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

EDWIN C. LENOW                      PAUL G. SUMMERS
100 North Main Building, #2325      Attorney General and Reporter
Memphis, TN 38103
                                    PATRICIA C. KUSSMANN
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    WILLIAM GIBBONS
                                    District Attorney General

                                    PAULA WULFF
                                    Assistant District Attorney General
                                    Criminal Justice Complex, Suite 301
                                    201 Poplar Avenue
                                    Memphis, TN 38103




ORDER FILED ________________________

AFFIRMED PURSU ANT TO RULE 20

JERRY L. SMITH, JUDGE
                                  ORDER

      The Appellant, Bailey R. Agnew, appeals the Shelby County Criminal

Cou rt’s order d eclarin g him an Habitual Motor Vehicle Offender under Tenn.

Code Ann. § 55-10-601, et. seq. On appeal, the Appellant claims that the trial

court erred in den ying his motio n to dis miss the Sta te’s pe tition to h ave him

declared an habitual offender on the grounds that the petition was barred by the

statute of limitations or, in the alternative, th e equitab le doctrine of laches . We

affirm the trial court’s judgment pursuant to Rule 20 of the Tennessee Court of

Appeals.



      The Appellant was convicted on October 13, 1992, and June 27, 1997, for

driving while his license was cancelled, suspended or revoked. On August 15,

1997, the Appellant was convicted for the offense of driving under the influence

of an intoxicant. Some time ther eafter, the T ennes see De partme nt of Safe ty

notified the dis trict attor ney’s o ffice that the Appellant had received three (3)

qualifying convictions in five (5) years, making him an habitual offender under the

Motor Vehicle H abitual O ffenders Act. See Tenn. C ode Ann . § 55-10-603 (2)(A).

On February 13, 1998, the State filed a petition to have the Appe llant declared

an habitual offen der.



      The Appellant contends that Tenn. Code Ann. § 55-10-606 requires the

district attorney to “forthwith” file the petition upon re ceiving no tice that a

defendant has the requ isite number o f convictions to be declared an habitual

offender. Thus , he m aintains that the State’s petition is time-barred under the



                                         -2-
statute of limitations and under the doctrine of laches because the assistant

district attorney did not file the petition to declare him an habitual offender

immediately upon receipt of notice.



       To establish the defense of laches, the Defendant must prove (1) an

inexcu sably long delay in bringing the suit, and (2) prejudice to the Defendant as

a result of the delay. Jansen v. Clayton, 816 S.W.2d 49, 51 (Tenn. App. 1991).

The assistant district attorney who filed the petition estimated that he received

notice of the Appellan t’s habitual offender sta tus in Decem ber 1997. T he trial

court found that a delay of two (2) months in filing the petition was not

inexcu sable nor inappropriate, and we agree. The application of the doctrine of

laches lies within the trial court’s discretion and will not be reversed absent an

abuse of discretio n. State v. Gipson, 940 S.W .2d 73, 76 (Tenn . Crim. A pp.

1996). The trial court did not abuse its discretion.1



       The Appellant further claims that the petition is barred under the statute of

limitations. However, although the prosecutor has a duty to “proceed with due

diligence to file a p etition,” th is Court has held that no statute of limitations applies

under the Moto r Vehicle Habitua l Offende rs Act. State v. Roge r W . Freeman,

C.C.A. No. 03C 01-9208-C R-00268, 1 993 Tenn. Crim. App. LEXIS 349, at *2,

Sullivan Coun ty (Tenn. Crim . App. filed June 1 , 1993, at Kno xville).



       After reviewing the record before this Court, we conclude that the trial court

did not err in failing to dismiss the Sta te’s petition to declare the Appellant an


1
  It is doubtful that the doctrine of laches would even apply in this case. “[T]he doctrine
of laches is not generally imputed to a governmental agency by the action of an office
holder.” State v. Gipson, 940 S.W.2d at 75.

                                              -3-
Habitual Motor Veh icle Offender. Ac cordingly, we affirm the judgment of the trial

court pursuant to Tennessee Court of Criminal Appeals Rule 20. Costs o f this

appeal are taxed to the Appellant, Bailey R. Agnew, for which let execution issue.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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