### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs November 28, 2001 STATE OF TENN ESSEE v. CHAR LES WILBURN TAY LOR 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 offende r was fil ed and se

rved on h im. He did not appear at the hearing, where a de fa ultjudgment was entered. Subsequently, he filed a moti on to set aside the default order, arguing that the service of the order on him was inadequate. The tria l court de nied the m

otion, and we affi rm that de

nial. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed A LAN E. G LENN , J., delive red the op inion of the court, in which J OSEP H M. T IPT ON and J OHN E VERETT W ILL IAMS , JJ., joined. Craig L. Garrett, Maryville, Tennessee, for the appellant, Charles Wilburn Taylor. Paul G. Summers , Attorne y Gener al and Re

porter; G ill Robert G

eldreich, Assis t ant Attorney Genera l; J. Scott McCluen, District Attorn ey Gene ral; and Daryl Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant, Charles Wilburn Taylor, was convicted in Tenne ssee of driving under the influence in 1986, 1987, and twice in 1994. Additionally, he was convicted in 1987 of drivin g 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 Offender s (“MVHO”) Act. See Tenn. Code Ann. § 55-10-601, et seq . According to the show cause order ent ere d on the same date that the petition was filed, which was to be served on the defendant at 110 Windsor Drive, N ashville, 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 oper ating a motor vehicle in Tennessee.1 The defendant ass ert s, on appeal, t

hat he was ser ved on September 4, 1996, at the Roane County Courthouse, app aren tly based upon his int erpreta tion of t he officer ’s ret

urn, which st ates: “Executed as commanded by readi ng to, givi ng a copy t o, and ci ti ng the de fendant to Court on 4th , Novem ber at 9:00 a.m. a t the Courthous e in Ro ane Co unty , this the 4 day of Sept , 19 96 .” Ho we ver, w e interp ret this return to st ate that the def endant was served on September 4, 1996, to appear on Novem ber 4, 1996, at t he Roane Count y Courthous e, not neces sari ly that he was served at that locat ion. -2- The record on appeal shows that the defe ndant 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 r eset so that he could retain an attorney. The appella te 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 veh

icle 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 undersignedhereby certifies that a true and exa ct copy of the foregoing document

has been served u pon all counse l at int erest in this cause by delivering a true and exact c opy to the o ffices o f said counsel or by placing a copy in the United States m ail addr essed to saidco unsel at h

is office with suff

icient po stage to c arry it to it s destination. This the 25 day of Feb. , 19 97

. Angela Randolph Circuit/Criminal Court Clerk Handwritten at the bottom of the default order is the notation “cc: De ft., Dept. of Safety, DA.” The record on appeal includes a copy of a retu rn receipt card showing that article number 544881792 was sent by certified m ail 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. Taylo r,” the i nitials be

ing somewh at diffic

ult to read. However, the receip t itself do es not show what wassent. Through counsel, the defendant submitted a motion, which was filed on June 1, 2000, three years and three months after the entry of th e default order d

eclaring him to be a

motor veh

icle 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 complywith the provisions of Tenne ssee Rule s of Civil Proced ure 58. Sa

id Rule-3- require s that all O

rders e ither co ntain

the signatures of

all parties or a certificate i ndicating 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 a nd exac t copy had

been ser ved on all counsel by mailing t

he same t o counsel’ s office . The ce rtifica te does notin dicate th at it was served upon the parties. In this cause the Defend ant, Cha rles Wilburn Taylor, was never represe nted by counsel and cons equently the cer tificate should hav e noted th at a copy had been ser ved upon t

he Defe ndant. The tr ial cour t held a hearing in the matter on August 18, 2000, the defendant, being incarcerated

and appearing through c ounsel, arguing that the entry of the default judgment was ineffective because it did not comply with Tennessee Rule of Civil Procedure 58, which pr ovides, in pertine nt part, a s follows: Entry of a judgmen t or an order of final disposition is effective when a judgmen t cont aining one of the following is marked on the face by the clerk as filed for e ntry: (1) the signatures of the judge and all parties or counsel, or (2) the signatures of the judge and on e party o r counsel with a certifi cate of counse

l that a copy of the proposed order has been served on all other parties or counsel, or (3) the signatur

e of the j udge and

a certif icate of the cler k that a copy has been ser

ved on all other pa rties or c ounsel. Claiming that this rule wasviolated , the def endant seeks relie

f pursua nt to Tenness ee Rule of Civil Pro cedure

60.02, wh

ich provi des, in pe

rtinent pa rt, as fo llows: 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, orde r or proceeding for the following reasons: (1) mistake, inadver tence, surprise or excusable negl ect; ( 2) fraud (whether heretofor e denominatedintrinsic or extrinsic), misrepresentation, or other misconduct

of an adv erse pa

rty; (3) t he judgme

nt is void ; (4) the ju dgment has been satisfied, released or discharged, or a prior judgmentupon which it is based has been rev ersed or otherwis e-4- v acated, 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 sha ll be m ade within a reasona ble time, and for reasons (1 ) an d (2) not more than one year after the judgment, order or proceeding wa s entered or taken. The defendant argues that he should be afforded rel ief pursuant to Rule 60.02 because the certifi cate of service recites that a copy of the default order w as sent to his counsel although he was notrepres ented by c ounsel, a nd the han

dwritten notation a

t the bott om of t he order is insufficient to show tha

t a copy w as sent to

the defe ndant. At the time of the August 18, 2000, hearing, according to defendant’s counse l, the defendant was in carce

rated in another jurisdict ion, and d

efense counsel a

nd the pro secutor

had agreed to proceed in the defendant’s absence. Although, apparently, counsel had stipul ated as t o certa in facts, the extent of the stipulations is unclear. Defense counsel stated that the defendant ha d not appeared at the hearing on February 24, 1997, because he was incarcer ated at the time. The prosecutor responded

that “there’s no explanation” as to why the defenda nt had not appear ed in cour t o n February 24, 1997. The prosecutor said that the defendant had appea red 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 cou rt reco rds according to the prosecutor, these exhibits do not appear to ha ve been included in the re cord on ap peal. Ap parentl y, one of the exhib its was a c opy of the default order, bearing the handwritten notation “cc: De ft., Dept. of Safety, DA,” and the record

on appeal does contain s uch a doc

ument. The

appella te reco rd alsocontain s a copy of the domestic return receip t, as we have previously described, showing that article number 5 4488179 2 was sen

t to “Charles W. Taylor, 110 Windsor Dr., Nashville, TN 37205” by certified mail, the receipt bearing the handwritten delivery date of “2-28-97” a nd 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 understa

nd, from t

alking to th

e Gener al, that th ere is so mething in t

he file th at lo oks like a registered letter w as sent to

my client’slast known

address , and some one other than him signed it. I think it’s probably his mother or father.” The parties agree that the Motor Vehicle Habitual Offenders Act, Te nn. Code Ann. § 55-10- 601, et seq. , is gov erned by the Tennessee Rules of Civi l Procedu re. The defenda nt, 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 subs tantial ga

ps inthe records and evidence in this matter for which the defendant has the burden of persuasion. Based upon the rec ord on appe al, we cannot conclude that the trial court er red in de nying rel ief. Rule 60.02(5) provides that relief is available to the defendant upon a showing of a “reason justifying relief.” Here, w e are unable to conclude that such a re ason exis ts. The record

shows, as the defendant asserts, that he was serve d with the petition and show cause order-5-

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 fil ed, as we

ll as a copy of it, which stated that a hearing had been sche duled for November 4, 1996, according to the return on the show cause orde r. Following the hearing, the court found that th e clerk had compl

ied with the court’s order by serving a copy of the orde r 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, cause s us to conclude that the court didnot abuse

its discretion in finding that there was compliance with Rule 58, the ambiguity in the certifi cate of servi ce notwit

hstanding . Thus, the

defenda nt was not e

ntitled to r

elief pu rsuant to Tennessee Rule of Civil Procedure 60.02. CONCLUSION Based upon the foregoing authorities and reasoning, the orde r of the tr ial cour t is affirmed.

___________________________________ ALAN E. GLENN, JUDGE