# FILED
March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE OCTOBER 19 98 SESS ION

STATE OF TENNESSEE, * C.C.A. # 03C01-9711-CR-00506

Appellee, * Sullivan C ounty VS. * Hon. R. Jerry Beck, Judge MICHAEL S AMUEL EID SON, * (Habitual Mo tor Vehicle Offen der)

Appe llant. *

For Appellant : For Appellee : Gale K. Flan ary John Knox Walkup Assistant Public Defender Attorney General& Reporter P.O. Box 839 Blountvi lle, TN 37617 Ellen H. Pollack Assistant Attorney General 425 Fifth Avenu e North Cordell HullBuilding Nashvill e, TN 37243 Greg A. Newman Assistant Distri ct Attor ney General P.O. Box 526 Blountvi lle, TN 37617

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, PRESI DING J UDGE1 The defendant was also charged and convict ed of severalother driving-rel ated offenses; the only convic tion on ap peal, how ever, is that fo r violating the h abitual traffic o rder on J anuary 30 , 1997. 2 OPINION The defendant, Michael Eidson, pled g uilty to violati ng an order declaring him to be an habit ual traffic offender, reserving the following certifie

d question of law: whether the 1993 order declaring the defendant to be an habitual traffic offender is void because the c lerk's office failed to mark the or der "filed" or "filed for entry." See Tenn. R. Civ. P. 58. The tr ial court imposed a two- year sentence to be served in TDOC. We affirm the judgment of the trial court.

On October 8, 1993, Criminal Court Judge E. P. Calhoun signed an order declaring the defendant t o be an habitual traffic offender. The order b arred the defendant from driving a motor vehicle until the defendant's driving priv

ileges had been reinstated. See Tenn. Code Ann. § 55-10-615. The defendant, w ho was not represented by counsel,and the assistant distric t attorney general appr oved and signed the contents of the order . A copy was made a part of the minutes of the court. Judge Calhoun sig ned the minutes. The clerk did not stamp the order "filed" prior to placing the or

der in the minutes.
In 1997, the grand jury returned an indictment charg ing that the defendant operated a motor vehicle in violation of the order entered in 1993. 1 The defendant filed a motion to dismiss the i ndictment, claiming the 1993 or der was invalid. When the trial court ov erruled the motion to dismiss , the defendant pled guilty, reserving the certified question of law challenging the validity of the traffic offender order.

Initially, actions under the Motor Vehicle Offenders Act are civil in3 nature. Bankston v. State , 815 S.W.2d 213, 216 (Tenn. Crim. App. 1991). In Bankston , this court ruled that one should mount any attack upon the habitual offender judgment through Rule 60 of the Tennessee Rules of Civil P rocedure:

On motion and upon such terms as are just, the court may relieve a party or th e party's le gal repres entative from a final judgment, order or pr oceeding for the following reasons: ( 1) mistake, inadvertence,surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or ex trinsic), misrepres

entation, 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 i s based has been reversed or other wise vacated, or i

t is no longer equ itable th at a judgm ent shou ld have pro spective application; or (5) any

other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable ti me, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. Tenn. R. Civ. P. 60.02.

Here, the defendant did not attack the order under Rule 60.02, Tenn. R. Civ. P.; instead, he filed a motion to dismiss the i ndictment charging him w ith violating the order. SeeRule 12, Tenn. R. Crim. P. A collateral attack in a separate proceeding such as this i s not permissible. Everhart v. State , 563 S.W.2d 795, 797- 98 (Tenn. Crim. App. 1978). "'I f the attack be collateral in its nature, an attack may not be made even on the ground of fraud.' " Id. at 798 (citations omitted).

Even if the defendant had proceeded under R ule 60, the challenge to the order would have fail ed. The order declaring the defendant to be an habitual traffic offender must comply with Rule 58, Tenn. R. Civ. P. : ENTRY OF J UDGMENT Entry of a judgment or an order of final disposition is effective when a judgment containing one of the foll owing is marked on the face by the clerk as filed for entry : (1) the signatures of the judge a nd all parties or counsel, or (2) the signatures of the judge a nd one party or4 counsel with a certific

ate of counsel that a copy of the proposed order has been serv ed 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 par ties or counsel. . . . Following entry of judgment, the clerk shall make appropriate docket notations and shall copy the judgment on the minutes, but failure to do so will not affect validity of the entry of judgment. (emphasis added). The advisor y commission comments to the r ule provide that "the effective date of a judgment is the dat e of its filing with the

clerk after being sig ned by the judge, even though it may not be copied or entered on the minute book un til a later date."
In our view, the clerk's failure to file stamp the order would generally cause the order to be ineffectiv e. The plain language of the rul e provides that the order bec omes ef fective o nly after the clerk m arks the o rder as fi led. Ten n. R. Civ. P. 58. See Teresa Mayrene King M ayes v. Gary Steph en Mayes , C.A. No. 03A01- 9404-CV-00121 (Tenn. App., at Knox ville, Jan. 11, 1995) (

finding final judgment was not effective because the clerk had not marked th e judgment as filed for entry).

The defendant did not, however, challenge the order in a timely fashion. Under Rule 60.02, Tenn. R.Civ. P., the defendant must act to set aside the order within a "reas onable time." Here, almost thr ee years elapsed before the defendant challenged the order. No reason is given for the delay. Moreover, because the defendant placed his sig nature on the order, he was fully aware that he had been prohibited from drivi ng. See State v. Do n D. Williams , No. 03C01-9404- CR-00148 (Tenn. Crim. App., at Knoxville, Jan. 13, 1995) (the court found an eightyear delay in chall enging the traffic offender order w as reasonable because the order was a default judgment about which the defendant had no know ledge for several years). The delay may be unreasonable where the defendant knows of the5 judgment against him and offers no r eason for his failure to timely challenge the judgment. Magnavox Co. v . Boles & Hite Constr. C o. , 583 S.W.2d 611, 613-14 (Tenn. App. 1979). The three-yea r delay, under these cir cumstances, was unreasonable.

Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ David H. Wel les, Judge

________________________________ Thomas T. W oodall, Judge