             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                           MAY 1997 SESSION
                                                FILED
                                                   July 10, 1997

                                                Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 02C01-9606-CR-00197
             Appellee,           )
                                 )    SHELBY COUNTY
VS.                              )
                                 )    HON. BERNIE WEINMAN,
MILTON SPEARS, JR.,              )    JUDGE
                                 )
             Appellant.          )    (Habitual motor vehicle offender)



FOR THE APPELLANT:                    FOR THE APPELLEE:


A C WHARTON, JR.                      JOHN KNOX WALKUP
Public Defender                       Attorney General & Reporter

WALKER GWINN                          SARAH M. BRANCH
Asst. Public Defender                 Counsel for the State
201 Poplar, Suite 2-01                450 James Robertson Pkwy.
Memphis, TN 38103                     Nashville, TN 37243-0493
   (On appeal)
                                      WILLIAM L. GIBBONS
SHERRY BROOKS                         District Attorney General
Asst. Public Defender
201 Poplar                            REGINALD HENDERSON
Memphis, TN 38103                     Asst. District Attorney General
   (At trial level)                   201 Poplar St., Suite 301
                                      Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                             OPINION



                The Shelby County District Attorney General petitioned to have the

defendant declared an habitual offender pursuant to the Motor Vehicle Habitual

Offenders Act, T.C.A. § 55-10-601 et seq. The defendant filed a motion to dismiss on

double jeopardy grounds which the court below dismissed. Subsequently, the court

below entered a consent order declaring the defendant an habitual offender and barring

him from operating a motor vehicle in the State of Tennessee. The defendant signed this

order. He now appeals, alleging that the order violates his constitutional protections

against double jeopardy. We affirm the judgment below.



                 The State contends that the defendant has waived his right to appeal the

order because he agreed to it and did not reserve the double jeopardy issue as a certified

question of law. In other words, the State asserts, the consent order has the effect of a

guilty plea. We agree that the consent order is, in effect, the civil equivalent1 of a guilty

or nolo contendere plea. However, a guilty plea does not automatically constitute a

waiver of a double jeopardy claim where, judged on the face of the record, the charge is

one which the State may be constitutionally prohibited from prosecuting. Menna v. New

York, 423 U.S. 61 (1975). See also State v. Rhodes, 917 S.W.2d 708, 711 (Tenn. Crim.

App. 1995). Here, the face of the record reveals that the State is seeking to sanction the

defendant based upon several criminal offenses of which he has been previously

convicted.      Under Menna, we hold that a double jeopardy claim is not waived by a

consent order under these circumstances.




        1
           Proceedings to declare a person to be an habitual offender under the Act are civil in nature, not
crim inal. Eve rhart v. State, 563 S.W .2d 795, 797 (Tenn. Crim. App. 1978). Appeals from these
proceedings are, however, to this Court. T.C.A. § 55-10-614.

                                                     2
              Having won that battle, however, the defendant loses the war.             Our

Supreme Court has previously decided that

              the revocation of all driving privileges of one declared to be
              an habitual offender under the Act is nothing more than the
              deprivation of a privilege, is <remedial in nature,’ and is not
              intended to have the effect of imposing <punishment’ in order
              to vindicate public justice. Consequently, the . . . proceeding
              to have the defendant declared to be an habitual offender
              and to have his driving privileges revoked does not subject
              him to double jeopardy.

State v. Conley, 639 S.W.2d 435, 437 (Tenn. 1982). The defendant requests us to

examine the continuing validity of this holding in light of United States v. Halper, 490 U.S.

435 (1989), and Montana Dept. of Revenue v. Kurth Ranch, ___ U.S. ___ (1994). We

have done so and find no reason to assume that our Supreme Court would change its

holding in Conley as a result of these cases. Accordingly, we affirm the judgment below.



                                                  ______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:


______________________________
GARY R. WADE, Judge


______________________________
THOMAS T. WOODALL, Judge




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