IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 28, 2001

STATE OF TENNESSEE v. CHARLES WILBURN TAYLOR

Direct Appeal from the Criminal Court for Roane County

No. 11539 E. Eugene Eblen, Judge

No. E2001-01617-CCA-R3-CD

January 8, 2002

A petition to declare the defendant a motor vehicle habitual offender was filed and served on him.

He did not appear at the hearing, where a default judgment was entered. Subsequently, he filed a

motion to set aside the default order, arguing that the service of the order on him was inadequate.

The trial court denied the motion, and we affirm that denial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN

EVERETT WILLIAMS, JJ., joined.

Craig L. Garrett, Maryville, Tennessee, for the appellant, Charles Wilburn Taylor.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney

General; J. Scott McCluen, District Attorney General; and Daryl Roger Delp, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Charles Wilburn Taylor, was convicted in Tennessee of driving under the

influence in 1986, 1987, and twice in 1994. Additionally, he was convicted in 1987 of driving while

license revoked. The State filed a petition on August 21, 1996, to have the defendant declared to be

an habitual offender under the Motor Vehicle Habitual Offenders (“MVHO”) Act. See Tenn. Code

Ann. § 55-10-601, et seq. According to the show cause order entered on the same date that the

petition was filed, which was to be served on the defendant at 110 Windsor Drive, Nashville,

Tennessee, he was ordered to appear in the Roane County Criminal Court on November 4, 1996, to

show cause why he should not be barred from operating a motor vehicle in Tennessee. 
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The defendant asserts, on appeal, that he was served on September 4, 1996, at the Roane County Courthouse,

apparently based upon his interpretation of the officer’s return, which states: “Executed as commanded by reading to,

giving a copy to, and citing the defendant to Court on 4th, November at 9:00 a.m. at the Courthouse in Roane County,

this the 4 day of Sept, 1996.” However, we interpret this return to state that the defendant was served on September

4, 1996, to appear on November 4, 1996, at the Roane County Courthouse, not necessarily that he was served at that

location.

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The record on appeal shows that the defendant was served on September 4, 1996, with the

petition and accompanying order to show cause.1 The court, in its order denying the motion to set

aside the default judgment, found that the defendant appeared at the Roane County Courthouse on

November 4, 1996, and asked that the matter be reset so that he could retain an attorney. The

appellate record shows that on February 24, 1997, the defendant failed to appear and a default order

was entered, declaring him to be an habitual offender, ordering that he not operate a motor vehicle

in Tennessee, that he surrender his driver’s license, and that he pay the court costs. The order bears

the following certificate of service:

The undersigned hereby certifies that a true and exact copy of the

foregoing document has been served upon all counsel at interest in

this cause by delivering a true and exact copy to the offices of said

counsel or by placing a copy in the United States mail addressed to

said counsel at his office with sufficient postage to carry it to its

destination.

This the 25 day of Feb., 1997.

Angela Randolph 

Circuit/Criminal Court Clerk

Handwritten at the bottom of the default order is the notation “cc: Deft., Dept. of Safety, DA.” 

The record on appeal includes a copy of a return receipt card showing that article number

544881792 was sent by certified mail to “Charles W. Taylor, 110 Windsor Dr., Nashville, TN

37205.” Handwritten on the receipt is the delivery date of “2-28-97,” the envelope being signed for

by what appears to be a “W. L. Taylor,” the initials being somewhat difficult to read. However, the

receipt itself does not show what was sent.

Through counsel, the defendant submitted a motion, which was filed on June 1, 2000, three

years and three months after the entry of the default order declaring him to be a motor vehicle

habitual offender, seeking to set aside that order. The motion explained the basis for the defendant’s

seeking to have the order set aside:

3. The Default Order entered by the Court does not comply with the

provisions of Tennessee Rules of Civil Procedure 58. Said Rule
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requires that all Orders either contain the signatures of all parties or

a certificate indicating that service has been made on the parties or

their counsel.

4. The certificate on the subject Order entered on February 24, 1997

contains a certificate that a true and exact copy had been served on all

counsel by mailing the same to counsel’s office. The certificate does

not indicate that it was served upon the parties. In this cause the

Defendant, Charles Wilburn Taylor, was never represented by

counsel and consequently the certificate should have noted that a

copy had been served upon the Defendant.

The trial court held a hearing in the matter on August 18, 2000, the defendant, being

incarcerated and appearing through counsel, arguing that the entry of the default judgment was

ineffective because it did not comply with Tennessee Rule of Civil Procedure 58, which provides,

in pertinent part, as follows:

Entry of a judgment or an order of final disposition is effective

when a judgment containing one of the following is marked on the

face by the clerk as filed for entry:

(1) the signatures of the judge and all parties or counsel, or

(2) the signatures of the judge and one party or counsel with a

certificate of counsel that a copy of the proposed order has been

served on all other parties 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.

Claiming that this rule was violated, the defendant seeks relief pursuant to Tennessee Rule

of Civil Procedure 60.02, which provides, in pertinent part, as follows:

Mistakes; Inadvertence; Excusable Neglect; Fraud, etc.

On motion and upon such terms as are just, the court may relieve

a party or the party's legal representative from a final judgment, order

or proceeding for the following reasons: (1) mistake, inadvertence,

surprise or excusable 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
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vacated, or it is no longer equitable that a judgment should have

prospective application; 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 year

after the judgment, order or proceeding was entered or taken. 

The defendant argues that he should be afforded relief pursuant to Rule 60.02 because the

certificate of service recites that a copy of the default order was sent to his counsel although he was

not represented by counsel, and the handwritten notation at the bottom of the order is insufficient

to show that a copy was sent to the defendant.

At the time of the August 18, 2000, hearing, according to defendant’s counsel, the defendant

was incarcerated in another jurisdiction, and defense counsel and the prosecutor had agreed to

proceed in the defendant’s absence. Although, apparently, counsel had stipulated as to certain facts,

the extent of the stipulations is unclear. Defense counsel stated that the defendant had not appeared

at the hearing on February 24, 1997, because he was incarcerated at the time. The prosecutor

responded that “there’s no explanation” as to why the defendant had not appeared in court on

February 24, 1997. The prosecutor said that the defendant had appeared in court on November 4,

1996, and asked for a resetting so that he could retain an attorney. The defendant’s counsel did not

contest this statement. Although the State entered three exhibits during the hearing, consisting of

certified copies of court records according to the prosecutor, these exhibits do not appear to have

been included in the record on appeal. Apparently, one of the exhibits was a copy of the default

order, bearing the handwritten notation “cc: Deft., Dept. of Safety, DA,” and the record on appeal

does contain such a document. The appellate record also contains a copy of the domestic return

receipt, as we have previously described, showing that article number 544881792 was sent to

“Charles W. Taylor, 110 Windsor Dr., Nashville, TN 37205” by certified mail, the receipt bearing

the handwritten delivery date of “2-28-97” and the signature of what appears to be “W.L. Taylor”

as receiving the document. Responding to this document, defendant’s counsel stated at the hearing:

“I understand, from talking to the General, that there is something in the file that looks like a

registered letter was sent to my client’s last known address, and someone other than him signed it.

I think it’s probably his mother or father.”

The parties agree that the Motor Vehicle Habitual Offenders Act, Tenn. Code Ann. § 55-10-

601, et seq., is governed by the Tennessee Rules of Civil Procedure. The defendant, as the party

seeking relief pursuant to Rule 60.02, has the burden of establishing the facts justifying relief. Holt

v. Holt, 751 S.W.2d 426, 428 (Tenn. Ct. App. 1988). The trial court’s denial of relief is subject to

an abuse of discretion analysis. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993).

There are substantial gaps in the records and evidence in this matter for which the defendant

has the burden of persuasion. Based upon the record on appeal, we cannot conclude that the trial

court erred in denying relief. Rule 60.02(5) provides that relief is available to the defendant upon

a showing of a “reason justifying relief.” Here, we are unable to conclude that such a reason exists.

The record shows, as the defendant asserts, that he was served with the petition and show cause order
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on September 4, 1996. As evidenced by the defendant’s convictions upon which the MVHO petition

was based, he was not a newcomer to the courts. He had actual knowledge that a MVHO petition

had been filed, as well as a copy of it, which stated that a hearing had been scheduled for November

4, 1996, according to the return on the show cause order. 

Following the hearing, the court found that the clerk had complied with the court’s order by

serving a copy of the order declaring the defendant to be a MVHO by registered mail at the

defendant’s last known address. This finding, coupled with defense counsel’s acknowledgment that

one of the defendant’s parents had signed the return receipt card, causes us to conclude that the court

did not abuse its discretion in finding that there was compliance with Rule 58, the ambiguity in the

certificate of service notwithstanding. Thus, the defendant was not entitled to relief pursuant to

Tennessee Rule of Civil Procedure 60.02.

CONCLUSION

Based upon the foregoing authorities and reasoning, the order of the trial court is affirmed.

___________________________________ 

ALAN E. GLENN, JUDGE