1 Up on a m otion by the d efend ant, this co urt con solida ted the cases o n app eal. See Tenn. R. App. P. 16.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON May 3, 2005 Session
STATE OF TENN ESSEE v. JAMES ROWE HUDSON Appeal from the Circuit Court for Carroll County No. 02CR1852 C. Creed McGinley, Judge Appeal from the Circuit Court for Henry County No. 13459 Julian P. Guinn, Judge

No. W2003-02433-CCA-R3-CD 1 - Filed September 21, 2005

The defendant, James Rowe Hudson, was declare d a Motor Ve hicle Ha bitual Of fender in Carrol l County by default judg

ment. Several weeks later, he was cha rged in Henry

County with dri vi ng while a Motor Vehicle HabitualOffender, a Class E felony

. See Tenn. Code Ann. § 55-10-616(a). The defendant then filed a motion pursuant to Rule 60 of the Tennes see Rules of Civil Procedure inCarroll Co

unty to set aside the original order. The motion was denied. Ultimately, the defenda nt was convicted in Henry

County and rece ived a

Range I, two-y

ear sentenc e. I

n this appe al of rig

ht, the following issues have been presented for our re view: (1) whether the

trial cou rt of Car roll County properl y denied the motion to s et aside the orde r decla rin g the defe ndant to be

a Motor Ve

hicle Habitual Offender; (2) whether the evide nce was sufficient to support the conv iction in Henry County for violationof the Motor Vehicle Habitual Offenders Act; and (3) whether the trial court of Henry County imposed an excessive sentence. The judgment of the Carroll County Circuit Court denying the defendant's motion

to set aside the orde

r decla ring him to be a Ha

bitual Motor Vehicl e Offender is reversed and the order is set asid

e. Bec ause the

convicti on in

Henry Co unty is based upon the Carroll County order, the conviction must be reversed and the charg e dismissed. Tenn. R. App.P.3; Judg ment of the Carro ll County Ci rcuit Co urt Reve rsed and Remanded; Judgment of the Henry County Circuit Court Reverse d and Dismissed
G ARY R. W ADE , P.J. , delive red the opinion of the court, in which D AVID H. W ELLES and J OHN E VERE TT W IL LI AMS , JJ., joined. Benjamin S. Dempsey , Huntingdon, Tennessee, for the appellant, James Rowe Hudson.-2-

Paul G. Summers, Attorney Gene ral & Reporter; Rachel E. Willis, Assistant Attorney General; and St eve nL. Ga

rrett (H enry

County ), Elean or Cahill ( Carroll Co

unty ), and Ste ven Jackson (Carro ll County), Assistant District Attorney s General, for the appellee, State of Te nnessee.

OPINION
OnJanuary 25, 2002, the state filed a petition in Carroll County asking that the de fendant be declar ed a Motor

Vehicle Habitual Offend er base d upon the

following

prior convictions :
Date Offense Number November 4, 1999 Driving Under the I nfluence 99CR-1872

Carroll Coun

t y General Session s January 6, 2000 Driving Under the I nfluence 99CR-2895

C arroll County General Session s November 22, 2000 Driving Under the I nfluence, 3rd 20CR-1593 offense; Driving on Revoked Carroll Co unty Circuit
Anorder, which was signed by the trial judge on the same day as the filing of the petition and included in the pro cess doc

uments, di

rected the defe ndant t o appear on March 18, 2002, to show
cause why he s ho uld not be declared a Motor Vehicle Habitual Off ender. As indicated by

the of ficer's return, the defendant was personally served with the petition and order on F ebruary 28 , 2002, less than thirty day

s before the date set for the show cause appearance. On May

22, 2002, an order was ente red in Car roll County

wherein the defe ndant wa s declar

ed a Motor

Vehicle Habitual Offender and his driving privileges were re voked. See Tenn. Code Ann. § 55-10-613. On the sa me da te, the courtclerk c ertifie d that a c opy of the or der had b een maile d to the de fendant at his last known add

ress.
OnAugust 7, 2002, the defendant was arr e sted in Henry County

and charged with driving inviolation of the Motor Vehicle Habitual Offenders Act. The record indicates that on November 27, 2002, the defendant filed a motion to set asid

e the ord er and ju dgment i n Carroll County pursuant to Rule 60 of the Tennessee Rules of C iv il Procedure. As grounds for relief, the de fendant complained

that the state had failed to comply with the terms of

the statute by failing

to provide at least thirty day s notice after

service of process before

his initial hearing date on March 18, 2002. He furthe rasserted tha t the state failed to provide advance notice, as re quired by law, of the date at whichdefault

judgment was sought in May . As his final issue, the defendant argued that the order should be set aside because the clerk of c ourt had mailed the document to the wrong a ddress. The motion was summarily denied. Meanwhile, the defendant was bound over to theHenry County Grand Jury, indicted, tried, and convicted. The judgment was entered on January 14, 2003. The statement

of the evidence, filed by defense counsel, ac knowl edged that an or

der had b een sig

ned in Car

roll County

declar ing him
a Motor Vehicle Habitual Offender and prohibiting him from driving. The statement confirmed that-3-

he had been stopped by Office

r Ricky Watson in Henry County less than three months after the Carroll County judgment had bee n entered. A

transcript was not filed. See Tenn. R. App. P. 24(c). Alth ough the statement of evidence was not specifically approved by e ither the office of the District Attorney or the trial judge, the record does not indicate tha t there were any

objections to the content as submitted by the defenda nt. By rule, if the

trial judge fails to approve of the statement of evidence "within 30 days afte

r the expiration of [the] period for filing objections," the "statement of the evidence and the exhibits shall be deemed to have been approved and shall be so considered by the appellate court." Tenn. R. App. P. 24(f).
Ini ti al ly, proceedings under the Motor Vehicle Habitual Offenders Act are civil rather than criminal in nature in that the purpose is not to punish but to revoke driving privileges. State v. Conley , 639 S.W.2d 43 5, 437 (Te nn. 1982) ; Bankston v. State , 815 S.W.2d 213, 215 (Ten n. Crim. Ap p. 19 91 ). Th e T en ne ss ee Ru le s o f C iv il Pr oc ed ur e t he re fo re ap pl y.
The first issue is whethe

r the Car roll County

Circuit Court properly denie d the defendant’s motion to set aside the order declaring him to be a Motor Vehicle Habitual Of fender. Rule 60 of the Tennessee Rules of Civil Procedure provides a method b y wh ich a par ty ma y se ek relie f from a judgmen t, defau lt or other wise. Tha

t Rule prov

ides as f ollows: On motion and upon such terms as are just, the court may relieve a party

or the party' s legal representative from a f inal judgment, order or proceeding for the following reasons: (1) mistake, i nadvert ence, su rprise or excusab le 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 equitabl e that a ju

dgment should have prospective appl i cation; 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 ye ar afte r the judg ment, order or proceeding
was entered or

taken. A motion unde

r this Rule 60.02 does not affect the finality of
a judgment or suspend its operation, but the court may enter anorder suspending the operation of the judgment upon

such terms as to bond and notice as to it shall seem proper pending the hearing of such motion. This rule does not limit the power of a court to entertain an independent action to relieve a party from a

judgment, order or proceeding, or to set aside a judg ment for fraud upon the court. . . .
Tenn. R. Civ. P. 60.02.
Our supreme court has held that the burden is upon the movant to set forth by motion with supporting evidence the specific grou nds for relie f. Hopkins v. Hopkins , 572 S.W.2d 639, 640 (Tenn. 1978); see also Holt v. Hol t , 751 S.W.2d 426, 428 (Tenn. Ct. App. 1988). "The granting of the motion to set aside a defaul t judgment is within the sound discretion of the trial court and the court should g rant the applica tion whenever the

re is rea sonable d

oubt as towhether

the defa ult-4-

judgment should be set aside." Tennessee State Bank v. Lay , 609 S.W.2d 525, 527 (Tenn. Ct. App. 1980). In Keck v . N ationwide Systems, I nc. , the Court o f Appea

ls ruled that "whe

n there i s a reasona ble doubt as to whether a default judgment should be set aside upon proper application, the court shou ld exerci se its discretion in f avor of g

ranting the appli cation so

as to per

mit a determination of the cause upon the merits." 499 S.W.2d 266, 267 (Tenn. App. 1973).
As indicate d the def

endant so ught re lief from the Carr

oll County

order on severa l grounds. Inthis appe al, he fi

rst asser ts that the judgmen t was void because the state failed

to comply with the statute, which re quires th at the de fendant be give n no less than thirty

day s after s ervice

to appear and show cause as to why

he should not be declared a Motor V ehicle Habitual Offender. Tennessee Code Anno tated se ction 55- 10-608 pr ovides as follows: (a) Upon the f

iling of the petiti on, the co

urt shall make an order

directing the individual (defendant) named therein to appea r before the court

to show cause why the defend ant sh ould not b e barre d from operat ing a motor ve hi cl e o n t he hi gh wa ys of this state. (b) The order of the court shall specify a time certain, not earl ier than thirty (30) days afte

r the date of service of the petition and order , at which the defendant shall first appea

r befor e the cou rt. Tenn. Code Ann. § 55-10-608 (emphasis added). The act contemplates service of proce ss of both the show cau se order and the petition upon the defendant. Tenn. Code Ann. § 55-10-609. The act also provides for a hearing on the petition:

(a) Upon the first appearance of the def end ant before the court, the court shalldetermine whether there is any material disputed, issue of fact with regard to the allegations of the pe

tit ion. If not , the court shall forthwith render an order or ju dg me nt as ma y be ap pr op ri at e w it ho ut th e i nt er ve nt io n o f a ju ry. (b) If, at the time of

the first appearance of the def endant before the court, the court determines that the

re is a dispute

as to any materia l fact or facts, the court shall make an order specify

ing what fact or facts are

disputed, and shall thereupon set the matter for hearing on

a day certain not earl ier than

thirty (30) day s therea fter, un less all parties agree to an ear lier date. As to any

fact disputed , the state

sh all have the burden of proof. Tenn. Code Ann. § 55-10-610.
The defendant also contends that the state fai led to p rovide advance notice of the date at whichdefault judgment would be sought. Rule 55.01 of the Ten nessee Rules of Civil Procedure provides , in part, as follow s:-5- When a party a

gainst whom a judgment for affirmative rel ief is sought has failed to plead

or other wise defend as provided by these rules and that fact is made to appear by affida vit or otherwise, judgment by default may be

entere d as follows:
The party entitled to a judg ment by default shall apply to the court. All parties againstwhom a de fault judg ment is soug

ht shall be served with a written notice of the application for judgment at least five day s before the hearing on the applica tion, regardless of whether the pa rty has made a

n appearance in the action

. . . . Tenn. R. Civ. P. 55.01 (emphasis added).
Fi na ll y, the defe

ndant ar gues tha t the state failed to comply with the terms of Rule 58 of the Tennessee Rules of Civil Procedure because he was not se rved with a copy of the fin al judgment. The de fe nd an t c on te nd s t ha t h e n ev er re ce iv ed a c op y of th e j ud gm en t b y m a il and attributes the
error to the clerk of the court's ha v ing mailed the judgment to Hollow Rock rather than Br uceton, his place of resid ence. Ru le 58 prov

ides, in pe

rtinent pa rt, as fo llows: Entry of a judgment or an order of final disposition is effe ct ive when a judgment containing one of the following is marked on the fa ce by the c lerk

as filed fo r e nt ry: (1) the signatures of the judge a nd all parties or counsel, or (2) the signatures of the judge a nd one party or c ounsel with a certificate of counsel that a copy of the proposed order has been served on all other pa rties 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

. . . . Tenn. R. Civ. P. 58 (emphasis added). Rule 5.02 provides that "[s]ervice . . . upon a party shall be made by d el iv er in g t o h im or he r a co py o f the docum ent to be served or by mailing it to such perso n's last kn own address
. " Tenn. R. Civ. P. 5.02 (emphasis added). In a ddition, Rule 5.03 provides that proof of service "may be by ce rtificate of a member of the Bar of the Cour t or by affida vit of the person who served the papers, or by any other pr

oof satisfactory

to the court." Tenn. R. Civ. P. 5.03. In thi s instance, the certificate of service provides that the clerk of the court served the defendant

with the or

der by sending it, via Uni

ted State s mail, tohis last known address. In our view, this is sufficient to comply with the require ments of Rule 55.
Withregard

to the othe

r issues, however, it is our vi ew that the state f ailed to c omply

with the procedural requirements. The state conc edes that it failed to comply with T e nnessee Code Annotated

section 55-10-608 because the initial hearing da te was scheduled for

March 18 , 2002, le ss thanthirty day

s after the original

show cause order

was personally se

rved upon the defendant. The statefurther

conced es that it f

aile d to comply with Rule 55.01 of the Rules of Civil Procedure by failing to pr ovide notice of the default judgment prior to its entry on May 13, 2002. Other than a-6-

statement that the defendant was not present, there is no refe rence in the final order that the judgment was obta ined by default

. Thesefacts are indistinguishable from those in State v. Collis Branch , No. E2001-00711- CCA-R3-CD(Tenn. Crim. App., at Knoxville, Dec. 10, 2001). In that case, the or der declaring the defendant a Motor Ve

hicle Ha bitual Of fender was uphe ld only

because the defe ndant fa iled to fil e his mot ion to se t a si de th e j ud gm en t p ur su an t t o R ul e 6 0. 02 un ti l a lm os t s ix yea rs af te r e nt ry. Observingthat the sc ope of re view on a

ppeal wa s lim ited to whethe r the tria l court a bused its discretion, this cour

t ruled tha t the tria l court, in "attempting to strike a proper balance between the competing principles of finality and justice," had properly

exercised that discretion

by concluding that the six-year delay

in the filing of the motion for relief from the judgment was unreasonable. Id. , slip op. at 4-5. Rule 60, of course, requires filing within a " reasonable" time and require s fili ng within a yea r when the motion is based upon mistak e, inadve rtence , surpris e, excusa ble neg lect, fraud, misrepresentation, or misconduc t of a n adverse party

. See Tenn. R. Ci v. P. 60.0 2. By comparison, there were only six months between the entry of the orde r in this case and the filing of the Rule 60 motion by

the defendant, well within the time prescribed on any of the potential grounds for relief.
The summary nature of

the trial cour

t's den ial of the defendant's motion to set aside the judgment precluded an

y cons ideration of whether the court struck "' a proper balance between the competing principles of finalit y and justice.'" Banks v. Dement Construction Co. , 817 S.W.2d 16, 18 (Tenn . 1991 ) (quo ting Jerkins v. McKinney , 533 S.W.2d 275, 280 (Tenn. 197 6)). In consequence, it is our view that because the state failed to follow the proper procedure in obtaining the order and because the defe ndant had proper grounds and acted in a reasonable time, the judgment of the Carr oll County

Circuit Court denying

the motion to set aside the order must be reversed. The order declaring the defendant a Motor V ehicle Habitual Offe nder i s set aside and the c ause is remanded for proceeding s not inconsistent with this opinion.

Becau se the judgment of conviction in Henry County is contingent upon the validity of the Carroll County order, it must be rever sed and the cause dismissed. Further, because the conviction ha s b ee n r ev er se d a nd di sm is se d, a r ev ie w o f t he pr op ri et y of th e s en te nc e i s n ot ne ce ss ar y.

___________________________________ GARY R. WADE, PRESIDING JUDGE