# FILED
July 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JACKSON MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9709-CR-00339 Appellee, ) ) Shelby County V. ) ) Honorable W . Fred Axley, Judge ) RALPH D. COOPER, ) (Habitual Motor Vehicle Offender) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Robert M. Brannon, Jr. John Knox Walkup Attorney at Law Attorney General & Repor ter 295 Washington Avenue Suite 3 Douglas D. Himes Memphis, TN 38103-1911 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 William L. Gibbons District Attorney General Rosemar y Andrews Assistant District A

ttorney General 201 Poplar Avenue, Third Fl oor Memphis, TN 38103

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge-2- O P I N I O N Alleging that the appellant, Ralph D. Cooper, had been c onvicted of three qualifying vehic

ular offenses during a five-y ear period, the state, pursuant to Tennessee Code Annotated § 55-10-601, fil ed a petition on April 16, 1997 seeking to declare the appellant a habitual motor vehicle off ender. On August 26, 1997, a he aring on the peti tion was held. At th e conclusion of the hearing, the trial court, finding no material disputes of fact, gr anted the state’s petition declaring the appellant a habitual motor vehicle offen der.
The appellant presents four issues for our review on appeal : (1) whether the trial court erred in failing to afford him a trial by jury; (2) whether the trial court erred by failing to g rant a continuance based upon his filing of a post-conviction petition attacking one of the state’s qualifying offense s in its petition to declare him a habitual motor vehicl e offender; (3) whether the trial court erred in failing to exclude records of the July 2, 1991 conviction which were offered by the state in support of its petition; and (4) whether the trial cour

t erred in its declaration of him as a habitual motor vehi cle offender, thereby viol ating the double jeopardy clause of the U nited States and Tennessee Constituti ons. We affirm.
In his first issue, the appel lant argues that the trial court improperly deni ed his request for a jury

trial. He contends that there are two material disputes of fact which necessitate a j ury trial: whether his filing of a post-conv iction petition created a material dispute of fact and whether the Ralph D. Co oper that the state was attempting to decl are a habitual motor veh icle offender was in fact him.
The state asserts that the trial court properly denied the appellant’s request for a tria l. Citing State v. Everhart , 563 S.W.2d 795, 797-98 (Tenn. Crim. App. 1978), the state mai ntains that “collateral attacks on the underlying convictions are not pr

oper at a habitual offender hearing. ” It insists that the appellant had three facially valid convictions

at the time of the hearing.-3- Therefore, there was no material dispute of fact created by the fil ing of the postconviction relief petition.
With regard to the appellant’s conte ntion that the state did not establish identity, the state argues that the appellant “implicitly admitted to his convictions.” It notes that the trial cour t commented during the hearing that “the defendant has admitted that he has been punished on ea ch and every one of the convictions.” Thus, the state maintains that identity does not presen t a material dispute of fact warranting a jury trial.

From our review of the record, we must agree with the state. Everhart plainly states that col lateral attacks on conv ictions are not proper at a habitual offender hearing. Furthermore, we find nothing to indicate tha t the appellant is not the same Ralph D. Cooper as the person in the three convictions. Thu s, this issue is without meri

t.
In his second issue, the appel lant contends that the trial court erred by denying his motion for a c ontinuance. He maintains that because he filed a postconvictio n relief petition challengi ng one of his convict ions, the court sho uld have granted him a continuance until a decision of his petition ha d been rendered. He argues that the trial co urt abused its discretion by denying him a continuance, which “in effect punished and deprived [him] of due p rocess of law by legally barring him from operating a motor vehicle, whi le the validity of one of the qualifying offenses was in material dispute.”

The state asserts that the tri al court did not abuse its discretion. It notes that “the granting of a continuance rests in the sound discretion of the trial court.” The state insists that the appellant’s post-conviction petition was immaterial to the habitual o ffender he aring.-4- We agree with the state that the trial court did not abuse its dis cretion. The appellant had three facially valid convictions

at the time of the hearing; and as the state notes in its br ief, that is all that is r

equired before the hearing c an proceed. This issue is w ithout merit.
Next, the appellant arg ues that the trial court er red by improperly ad mitting evidence of the appellant’s 1991 conviction. He asser ts that the state attempted to introduce the 1991 convic tion but that “it had not been pr operly authenticated, and thereby should have been excluded under Rule 901 of the Tennes see Rules of Evidence.” Furthermor e, he contends that the evidence of the conviction was inadmissible under evide nce Rule 902 because it did not bear the official state seal.

The state maintains that the evi dence of the appellant’s 1991 conv iction was properly admitt

ed. It contends that the convi ction was certified by the deputy clerk of the general sessions court of Shelby County. The state acknowledges that althou gh the certification w as signed, there was no seal affixed. The state insists that Tennessee Rule of Evidence 901(b) (7) provides that, as in this case, the c ertification of the deputy cler k provides evidence that the copy of the conviction was from the general sessions court where such records are kept. Furthe rmore, it argues that ther e is nothing in the recor d, or from the appellant, to suggest that the copy of the 1991 convi ction was false. Thus, the evidence of the convi ction was properly admitted.
Although the seal was not affixed, the signed certific ation of the deputy clerk was sufficient to indicate that the copy of the 1991 conviction was not fa lse or unreliable, especiall

y in light of the appell ant’s failure to provide proof to the contrary. This issue is without merit.-5- Finally, the appellant in his fourth issue invi tes this Court to rev

isit the issue of whether the Motor Vehicle Habitual Offenders Act violates do uble jeopardy, noting that our Supreme Court has held that the A ct does not violate double jeopardy. State v. Conley , 639 S.W.2d 435 (Tenn. 1982). The state argues that because the appell ant fails to provide an arg ument for his request, this issue is waiv

ed pursuant to Rule 10(b) of the R ules of the Court of Criminal Appeals.

We decline the invitation to revisit the issue of do uble jeopardy. This issue is waived.
Finding no error mandatin g reversal, we affirm the trial court’s ju dgment.-6- ______________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

___________________________ JOHN H. PEAY, Judge

___________________________ THOMAS T. W OODALL, Judge