        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                February 13, 2013 Session

       STATE OF TENNESSEE (APPELLANT) VS. JAY HART FRIER

                 Appeal from the Circuit Court for Williamson County
                       No. ICR063275      Robbie T Beal, Judge




          No. M2012-02080-CCA-R10-CD Filed October 16, 2013



Appellee, Jay Hart Frier, was indicted by the Williamson County Grand Jury for driving
under the influence (“DUI”), DUI per se, DUI with a blood alcohol concentration of .20%
or more, and DUI second offense. Prior to trial, Appellee filed a motion in limine to dismiss
the last count of the indictment based on the fact that his prior DUI was facially invalid. The
trial court held a hearing and denied the motion. Appellee filed a motion to reconsider. The
trial court ultimately granted the motion in limine and dismissed the last count of the
indictment. The State sought reconsideration of the ruling. The trial court declined to
reconsider. The State sought an interlocutory appeal. The trial court denied the application.
The State then sought an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules
of Appellate Procedure. This Court granted the application. On appeal, after a review of the
record and applicable authorities, we determine that the trial court improperly dismissed the
indictment where Appellant sought to collaterally attack his previous conviction rather than
seeking review of the underlying conviction via a writ of habeas corpus. As a result, the
decision of the trial court is reversed. On remand, the indictment should be reinstated and
the matter set for further proceedings.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Trial Court is Reversed
                                 and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Kim R. Helper, District Attorney General, and Carlin Hess, Assistant District
Attorney General, for the appellant, State of Tennessee.
Lee Ofman, Franklin, Tennessee, for the appellee, Jay Hart Frier.


                                           OPINION

                                      Factual Background

       On March 12, 2012, Appellee was indicted by the Williamson County Grand Jury in
a multi-count indictment for one count of DUI, one count of DUI per se, one count of DUI
with a blood alcohol level of .20% or greater, and one count of DUI, second offense. Count
Four of the indictment specifically alleged that Appellee had a prior DUI conviction from
April 23, 2008, in the Circuit Court of Williamson, Tennessee.

        On April 18, 2012, Appellee filed a motion in limine to dismiss Count Four of the
indictment, charging Appellee with DUI, second offense. In the motion, Appellee alleged
that the prior conviction could not be used for enhancement purposes because it was: (1)
facially invalid; (2) void; (3) in direct contravention of statute as to fines and probation; and
(4) in direct contravention of statute as to mandatory DUI school and silent as to loss of
driving privileges. The State responded to the motion by arguing that Appellee was
attempting to collaterally attack his prior DUI conviction and should only be allowed to do
so through a post-conviction petition or habeas corpus petition.

       On April 20, 2012, Appellee amended the motion in limine. In the amended motion,
Appellee claimed that Count Four of the indictment, charging Appellee with DUI, second
offense, could not be used for enhancement purposes and must be dismissed because it was
facially invalid. Specifically, Appellee argued that the judgment: (1) was in direct
contravention of the provisions of Tennessee Code Annotated section 55-10-403(a)(1)(A)(i),
as to minimum fines and Tennessee Code Annotated section 55-10-403(c)(1)(A)(i), as to
probation; (2) was silent with respect to the loss of driving privileges or mandatory
attendance of DUI school required by Tennessee Code Annotated sections 55-10-
403(a)(1)(A)(i) & 55-10-403(c)(1)(A)(i); and (3) was void on its face because it shows that
no fine was levied against the Appellee.

        At the hearing on the motion, Appellee argued that the 2008 judgment was void on
its face because it failed to follow the explicit requirements of Tennessee Code Annotated
section 55-10-403. He insisted that if a judgment is facially invalid and therefore void, the
trial court “can strike it at any time and in fact, has [the] duty to do so.” The State agreed that
the 2008 conviction was void but argued that Appellee could not collaterally attack the
conviction via a motion in limine. The State urged Appellee to properly attack the conviction
through the “proper procedural avenue” of a petition for writ of habeas corpus or petition for

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post-conviction relief. The State also argued that even if Appellee had properly filed a
habeas corpus petition it would fail because Appellee was no longer restrained of his liberty
by the 2008 DUI conviction. Additionally, the State argued that even though the sentence
from the 2008 conviction appeared to be invalid, Appellee was still on notice that he had a
DUI conviction for the purposes of enhancement.

        The trial court noted the distinction between absolutely declaring a conviction void
and “[a]ttacking final judgments for purposes of enhancement.” The trial court noted that
it would not “strike” a conviction without a proper writ but had the authority to “strike” a
conviction for the purpose of enhancement. The trial court stated that it would take the time
to look at what happened in the prior DUI case because it occurred in the same county. The
trial court noted that it needed to ascertain whether Appellee was “afforded all [of] his
constitutional rights and was notified that it could be used for enhancement purposes.” The
trial court expressed some concern over the State’s seemingly contradictory position that the
judgment was admittedly void but that it was still valid for enhancement purposes.

        The trial court determined that Appellee was not required to file a petition for post-
conviction relief or a petition for writ of habeas corpus in order to challenge the indictment.
In other words, the trial court deemed the motion in limine the proper procedural vehicle for
Appellee to challenge the use of the prior DUI for enhancement purposes. At that point, the
trial court determined that even though the parties agreed the prior judgment was void, the
question of whether Appellee knew the conviction could be used for enhancement was still
an issue. The trial court concluded that Appellee “knew he had been convicted of D[UI]. .
. and, therefore, it’s properly used for enhancement.” The trial court orally denied the motion
in limine.

       At that point, counsel for Appellee asked the trial court to read a Tennessee Supreme
Court case that supported the Appellee's position. The trial court agreed to read the case after
the hearing and stated that it would come to a different conclusion if the trial court had
“made a mistake” in judgment.

        On May 23, 2012, Appellee filed a motion to reconsider and clarify the ruling of the
trial court. On June 1, 2012, Appellee filed an amended motion to reconsider and clarify the
ruling of the trial court.

       On June 15, 2012, the trial court entered an order and memorandum, this time granting
Appellee’s motion to dismiss Count Four of the indictment. In the order, the trial court
determined that Appellee’s prior DUI conviction was in direct contravention of Tennessee
Code Annotated section 55-10-403(a)(1)(A)(i) and (c)(1)(A)(i) because it lacked minimum
fines and did not sentence Appellee to probation of any type. Further, the trial court

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determined that the judgment was silent as to loss of driving privileges and mandatory
attendance at DUI school pursuant to Tennessee Code Annotated section 55-10-
403(a)(1)(A)(i) and (c)(1)(A)(i). The trial court noted that it:

       [A]grees with the principles set forth in the State’s response to [Appellee’s]
       motion in limine, i.e. that two (2) distinct procedural avenues are available to
       collaterally attack a final judgment, it is not necessary for this Court to
       determine whether [Appellee] is making such a collateral attack. Rather, on
       May 21, 2012, the parties stipulated at a hearing before this Court that the
       subject judgment was void on its face as a result of said stipulation, thus, this
       Court need only address whether a void judgment may be used for
       enhancement purposes. Because the final judgment of DUI entered April 24,
       2009 is a void judgment, as stipulated to by both parties, that judgment cannot
       be used to enhance a subsequent judgment for DUI.

The trial court cited the concurring opinion of State v. David Gardner, No. 85-20-III, 1986
WL 7848, at *7 (Tenn. Crim. App., at Nashville, Jul. 16, 1986) (Duncan, J., concurring),
perm. app. denied, (Tenn. May 11, 1987), which stated:

       In cases where the State is seeking enhanced punishment on a current DUI
       offense because of a defendant’s prior conviction for DUI, and where the State
       introduces a facially valid judgment showing such a prior conviction, then, in
       my view, a defendant is foreclosed in that current proceeding from making or
       attempting to make a collateral attack upon the validity of such prior
       conviction.

       The defendant’s argument that his challenge to his prior conviction was direct
       and not collateral is not tenable. Either his prior conviction was void or it was
       not. If it was void it could not be used as a basis to find that he was a DUI
       second offender. If it was valid, it could be.

       In other words, the trial court determined that the “prior void DUI final judgment”
could not “be used as a basis to enhance a subsequent DUI offense.” The trial court then
dismissed Count Four of the indictment.

       The State sought an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules
of Appellate Procedure. The trial court denied that request. Then, the State sought an
extraordinary appeal pursuant to Tennessee Rule of Appellate Procedure 10. This Court
granted the extraordinary appeal.



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                                           Analysis

       On appeal, the State insists that the trial court abused its discretion when it dismissed
Count Four of the indictment. Specifically, the State contends that the proper avenue for a
collateral attack on a prior conviction is through a writ of habeas corpus or a post-conviction
proceeding rather than a motion in limine in a subsequent criminal proceeding. Appellee
disagrees.

        Appellant argues that State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), controls the
resolution of the issue. We disagree. In McClintock, our supreme court succinctly set forth
the issue in that case as follows:

       This case is before the Court to resolve significant questions concerning the
       proper procedure for determining the validity of a facially sufficient conviction
       under T.C.A. § 55-10-401, et seq. (DUI), when such a conviction is used to
       enhance punishment on subsequent DUI convictions. Defendant, Robert
       McClintock, voluntarily entered a plea of guilty to DUI; his sentence was
       enhanced by the trial court under T.C.A. § 55-10-403 on the basis of a prior
       DUI conviction.

McClintock, 732 S.W.2d at 268.

        In McClintock, the judgment of the prior conviction included defendant’s signed
waiver of his right to counsel. Id. at 269. Defendant asserted, however, that he had not
validly waived his right to counsel. Id. The court in McClintock concluded that defendant’s
signed written waiver of his right to counsel made it a facially valid conviction. See id. at
273. Since the issuance of McClintock, Tennessee courts have rejected claims attacking
facially valid prior convictions in subsequent proceedings in which the prior convictions
were used to enhance punishment. See McClintock, 732 S.W.2d at 272; State v. Prince, 781
S.W.2d 846, 851 (Tenn. 1989); Smith v. State, 757 S.W.2d 683, 685-86 (Tenn. Crim. App.
1988). The Tennessee Supreme Court has held:

       [U]nless invalid on its face, a prior judgment of conviction in a court with
       personal and subject matter jurisdiction cannot be collaterally attacked in a
       subsequent proceeding in which the challenged conviction is used to enhance
       punishment. The authorized route for attacking a facially valid, final judgment
       of conviction is by the Post Conviction Procedure Act. An evidentiary hearing
       can be afforded in that forum and not at the proceeding in which such prior
       conviction is used. Once invalidated, the enhancement value of the conviction
       is also nullified, exposing the enhanced sentence on the subsequent conviction

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       to collateral attack as well.

McClintock, 732 S.W.2d at 272.

         As detailed above, prior to trial, Appellee filed a motion in limine to dismiss Count
four of the indictment because his prior DUI conviction was facially invalid and void. The
State agreed that the prior sentence was illegal because it did not follow the requirements of
the statute. In Cantrell v. Easterling, 346 S.W.3d 445 (Tenn. 2011), the Tennessee Supreme
Court reminded us that an illegal sentence may be ground for habeas corpus relief and
discussed in detail the three categories of error that can appear in a judgment and the proper
procedures for correcting those errors. The three categories of errors that can appear in a
judgment are clerical errors, appealable errors, and fatal errors. Id. at 449-53. “An illegal
sentence [containing fatal error] is one which is ‘in direct contravention of the express
provisions of [an applicable statute], and consequently [is] a nullity,’” or one which is “not
authorized under the applicable statutory scheme.” Id. at 452 (citations omitted). Only
sentences containing “fatal errors,” and which are therefore illegal, may be addressed through
the collateral proceeding of habeas corpus. Id. Examples of illegal sentences for which
habeas corpus relief is permissible include: “(1) a sentence imposed pursuant to an
inapplicable statutory scheme; (2) a sentence designating a [release eligibility date] where
. . . prohibited by statute; (3) a sentence ordered to be served concurrently where statutorily
required to be served consecutively; and (4) a sentence not authorized for the offense by any
statute.” Id. at 452 (citing Davis v. State, 313 S.W.3d 751, 759 (Tenn.2010)).

       We recognize that Appellee’s judgment seemingly contains fatal errors because it did
not impose a mandatory minimum fine, did not provide for Appellee to attend DUI school,
and did not impose a sentence of probation as required by Tennessee Code Annotated section
55-10-403. However, although a trial court has the authority to correct an illegal sentence
at any time, a petition for habeas corpus relief for post-conviction relief is the proper
procedural method for seeking such relief. Id. at 453. In the case herein, Appellee chose to
collaterally attack the validity of his 2008 sentence in a motion in limine. Moreover,
although the sentencing provisions of Tennessee Code Annotated section 55-10-403 are
missing from the judgment, it is plain that Appellant in fact has a prior DUI conviction.
Appellee cannot collaterally attack the validity of his prior DUI conviction via a motion in
limine. Accordingly, the trial court’s dismissal of the fourth count of the indictment was in
error. Therefore, the judgment of the trial court is reversed. On remand, the indictment
should be reinstated and the matter set for further proceedings consistent with this opinion.




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                                       Conclusion

        For the foregoing reasons, the judgment of the trial court is reversed and remanded
for reinstatement of Count four of the indictment and any further proceedings which may be
necessary.

                                          _________________________________
                                          JERRY L. SMITH, JUDGE




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