# FILED March 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9802- CC-00079 ) Appe llant, ) ) ) ANDERSON COUNTY VS. ) ) HON. JA MES B. SCOTT,JR. ROY L. HOWARD, ) JUDGE ) Appellee. ) (Direct Appeal- Motor Vehicle ) Habitual Offende r)

FOR THE APPELLANT : FOR THE APPELLEE : CHRISTOPHER VAN RIPER JOHN KNOX WALKUP Stuart & Van Riper Attorney Generaland Reporter 300 Market Street , Suite 200 Clinton, TN 37716 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 JAMES N. RAMSEY Distri ct Attor ney General JAN HICKS Assistant Distri ct Attor ney Room 127, Anderson Co. Cou rthouse Clinton, TN 37716
OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On May 2, 1997, t he State fi led a peti tion in the Anderson County Criminal Court in which it sought to h ave Appe llee Roy L . Howa rd declared a motor vehicle habitual offender pur suant to Tennessee C ode Annotated sections 55-1 0- 601, et seq. The trial court conducted a hearing on t he petiti on on November 7, 1997, and the court

subsequently

denied the pet ition by an order dated February 11, 1998 . The S tate ch alleng es the trial cou rt’s den ia l of i ts pe tition. After a review of th e record , we mu st reverse the judgm ent of the tria l court.

FACTS

On Jan uary 1 and January 8, 1996, Appell ee was cited for drivi ng on a suspended license. On Janu ary 9, 1996, Appellee pled guil ty to both of t hese offenses. Appellee was also cited for dri ving on a suspended license on August 25, 199 6, and h e pled gu ilty to that offens e on N ovem ber 26, 1 996.

On May 2, 1997, t he State fi led its petiti on to have Appell ee declared a motor vehicle h abitual offender. On October 10, 1997, while th e petitio n was still pending before the t rial cour t, the TennesseeDepa rt me nt of Sa fety app arently accep ted mo netary fee s from A ppellee a nd reinsta ted his drivin g privileges
.
On November 7, 1997, the tri al court conducted a heari ng on the Sta te’s petiti on. The trial court deni ed the peti tion by an order dated February 11, 1998. Although the tri al court’ s order contains no f indings and no ex planation of whythe1 Appellee conten ds that the trial court erre d when it determ ined that it did n ot have ju risdiction to consider hi s motion. We conclude that the trial court was corre ct. The jurisdicti on of thi s Court attaches upon the filing of a notice of appe al and, thus , the trial court los es jurisdic tion. See State v. Pendergrass , 937 S.W.2d 834, 837 (Tenn. 1996).Therefore, “ [a]s a general rule, the trial

court may not hear

motions filed subsequently to the fili ng of the notice of appeal.” State v. Tony Craig Woods , No. 01C01- 9606- CR00238, 1997 WL 602865, at *2 (Tenn. Crim. App., Nashvi lle, Sept. 30, 1997). In additi on, the fi ndings that Appellee asked the trial court to mak e, such as an ex press f inding that th e Dep artme nt of Safe ty reinstat ed Appellee’s drivi ng privi leges after Appellee paid a fee, woul d have had no impact on the decision i n this case. -3- petiti on was d e nied, the transcript of the hearing indicates that the trial court denied the petit ion because the Depar tment of Safet

y had reinstated Appe llee’s driving privileg es after he paid a fee
.
The State filed a notice of ap peal on Fe bru ary 23, 199 8. On March 10, 1998, Appellee fi led a m otion in which he asked the trialcourt to amend t he judgmen t and mak e additional findings o f fact. On April 3, 1998 , the trial court denied Appellee’s

motion aft er it conc luded that because the Stat e had already filed notice of

appeal, t he trialcourt had no j urisdic tion to amend t he judgment or make additiona l findings of fa ct. 1

ANALY SIS

The State contends

thatthe trial c ourt er red wh en it dism issed the Sta te’s petiti on mere ly because the Department of Safety accepted fees from Appell ee and reinstated his dri ving pri vileges. We agree.

Under Ten ness ee Co de An notate d sec tion 55 -10-6 03, a m otor ve hicle habitual offender i s: Any person who, during a thr ee-year peri od, is convi cted in a Tennessee court or courts of

three (3) or more of thefollowi ng offenses; any person who, during afive-yea r period , is convicted in a Ten nesse e court o r courts of three ( 3) or more of the followi ng offenses; or any person who, during-4- a ten-year period, i s convict ed in a Tennessee court or courts of five ( 5) or more of the fol lowing off enses; provi ded, that if the five- or ten -year peri od is used, one ( 1) of such of fenses occurr

ed after July 1, 1991:

. . . . (x) A violat ion of § 55-5 0-504, rel ative to drivi ng on canceled, suspe nded, o r revoked license . . . . Tenn. Code Ann. § 55-10-603(2) (A) (1998). In addit ion , section 55- 10-613 providesthat “i f the court finds t hat [th e] defendant i s an habitualoffender, the court shall make a n ord er directi ng that such per son shall not

operate a motor vehicle on the highw ays of this state and that such person shallsurrender to the court a ll licenses to operate a moto r vehicle up on the h ighways of this state
. ” Tenn. Crim. A pp. § 55 -10-613 (a) (1998 ). The p eriod duri ng which a motor vehicle habitual o ff ende r is prohibited fr om obtaining another driver’ s license must be a t least three years. Te nn. Code Ann. § 55-1 0-615 (199 8).

It is eviden t that under section 55- 10-603, the sol e criteria to be used by
a trial court in de terminin g wheth er a defe ndant is a motor vehicl e habitual offen der is whether o r not the def endant has been convi cted of th e requ ire d number of specifi ed offenses dur ing the pres cribed ti me period. The actions of the Department of Safety are comp letely irrelevan t to this deter mination
. See State v. Loden , 920 S.W.2d 261, 264 (Tenn. Crim. App. 1995) (“A statute giv ing
a judge the ri ght to prohi bi t c ertain i ndividual s from driv ing motor vehi cles for certain periods is not related to nor depe ndent upon secti ons giving the Departm ent of Safety the po wer to grant, revok e, or suspen d licenses.”).
Appellee contends that beca use the Department of Safety accepted mone y from him and reinstated his dri ving privi leges, t he State shouldbe estopped fr om seeking revocati on of his lice nse u nder th e Mot or Ve hicle Habitua l Offende r Act.-5-

“Gene rally spea king, th e doc trine of e stopp el is not favore d und er our la w. ” Sexton v. Sevier C ounty , 948 S.W.2d 747, 750 (Tenn. Ct . App. 1997) ( citati ons omitted). In f

act , “ver y except ion al c ircums tances ar e required to invoke the doctrineagainst the Sta te and its governm ental subdivisions.” Id. (citat ions omitted). Further, “[e] stoppel is appropriate against government agen cies on ly when the age ncy indu ced the party to give up proper ty or a r ightin exchange for a promise.” Elizabethton H ous. & De v. Agency, Inc. v. Price , 844 S.W.2d 614, 618 (Tenn . Ct. App . 1992) (c itations om itted). There is no proof in the record that the State ind uced A ppellee to do anyth ing. There is absol utely no pr oof in the record that the D epartm ent of Sa fety ever promised Appel lee that if he pai d a fee, his driv ing priv ileges woul d be permanently r estored. Further, Appellee di d not give any money to the Depar tment of Safet

y untilafter

he knew that t he State had filed the petition to have him declared a motor vehicl e habitual offender. Under these circumstances, the doc trine of estoppel has no app licati on to this case.
Appellee also contends that thi s Court should dismiss this case because the issue o f decla ring him to be a motor vehicl e habitual offender became moot after theDepa rt me nt of Safety restored hi s drivi ng privi leges. The concept of mootness deals with the circum stances that ren der a case no longer justi ciable. McIntyre v. Traughber , 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). A moot case is one tha t has lost its c haracte r as a pre sent, live co ntroversy. Id. A cas e will gene rally be considered moot if it no l onger serves as a means to provide r elief to the preva iling party. Id. As previousl y stated, the acti ons of the Department of Safety are completely i rrelevant to the quest ion of whether Appe llee sh ould be declared a motorveh icle habitual offender. Thus, it is obvious that t his case-6-

involves a live controve rsy that can serve as a means to provide relief t o the State. In sh ort, this case is not mo ot.

In conclus ion, we ho ld that the tr ia l court er red when it di smissed the State ’s petition merely becausethe Department of Safety accepted money from Appellee and reinstat ed his driv ing priv ileges. Accordingl y, we rever se the judgment of th e trial court and we remand t his case for further proceedings consistent

with thi s opinion.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ JAMES CU RWOOD WITT, JR. JUDGE