FILED

September 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604-CC-00167

)

Appellee, )

)

) FRANKLIN COUNTY

VS. )

) HON. BUDDY D. PERRY

MICHAEL A. BASKETTE, ) JUDGE

)

Appellant. ) (Direct Appeal-Driving on Revoked 

) License)

FOR THE APPELLANT: FOR THE APPELLEE:

PHILIP A. CONDRA JOHN KNOX WALKUP

District Public Defender Attorney General and Reporter

12th Judicial District

P. O. Box 220 M. ALLISON THOMPSON

Jasper, TN 37347 Counsel for the State

450 James Robertson Parkway

Nashville, TN 37243-0493

J. MICHAEL TAYLOR

District Attorney General

WILLIAM COPELAND

Assistant District Attorney

1 South Jefferson Street

Winchester, TN 37398

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

A Franklin County Circuit Court jury convicted Appellant Micheal B. Baskette

of driving on a revoked license. As the result of two prior convictions in Davidson

County for driving on a revoked license, Appellant was subsequently convicted in a

bench trial for driving on a revoked license third offense. Appellant was sentenced

to sixty days in the county jail and a fine imposed. In this appeal, Appellant claims

that his conviction for driving on a revoked license third offense was improperly

based upon a prior guilty plea in which there was no effective waiver of counsel. For

the reasons set forth, the judgment of the trial court is affirmed.

I. FACTUAL BACKGROUND

On April 22, 1994, Appellant was stopped at a roadblock on Highway 127 in

Franklin County, Tennessee. When approached by a Tennessee Highway Patrol

officer, Appellant reportedly appeared to be intoxicated. The officer instructed

Appellant to pull his car into a parking lot. Appellant was then given a series of field

sobriety tests by the officer. As a result of these tests, Appellant was arrested and

charged with DUI. When the officer checked Appellant’s identification information

the check revealed that Appellant’s driver’s license was revoked; subsequently

Appellant was charged with driving on a revoked license. 

Appellant was indicted by the Grand Jury of Franklin County in a four count

indictment, which charged Appellant with driving under the influence, driving under

the influence, third offense, driving on a canceled, suspended, or revoked license,

and driving on a canceled, suspended, or revoked license, third offense. At trial on

these charges, the jury returned a verdict of not guilty on the count involving driving

under the influence and guilty on the count involving driving on a canceled,

suspended or revoked license. The fourth count of driving on a canceled,

suspended or revoked license third offense was tried by the judge. During the
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bench trial, Appellant pointed out to the judge that the waiver of attorney which

appeared on the reverse side of the driving on a revoked license citation dated

February 18, 1991 seemed irregular, because it did not list any of the procedural

safeguards that accompany a constitutional waiver. The judge agreed as to the

irregular appearance of the waiver, but stated that the court in which the matter was

heard would have a record of that proceeding. Appellant was found guilty of driving

on a revoked license third offense.

II. ATTACK UPON AN UNDERLYING CONVICTION

Appellant alleges that the trial court erred in relying on the February 1991

guilty plea which does not affirmatively establish on the face of the plea that the

statutory and constitutional protections required for an effective plea were ever

undertaken. Appellant argues that because the record does not establish a valid

waiver of the Appellant’s right to counsel at the plea proceeding in February 1991,

this Court should reverse and dismiss his conviction for driving on a revoked license,

third offense.

 In State v. Prince, 781 S.W.2d 846, the Supreme Court addressed this issue

in holding that a defendant must collaterally attack any infirm underlying convictions

before a he can attack a subsequent conviction based on those prior convictions.

[I]t is incumbent upon a defendant to establish the invalidity of

prior guilty pleas before he can procedurally launch a collateral

attack in a subsequent habitual criminal sentence on that

basis. If he has not previously done so it must be established

at an appropriate hearing for that purpose that he has not

knowingly and understandingly waived any grounds he may

have which would undermine the validity of a prior guilty plea.

The fact cannot be established on a silent record. Boykin, 395

U.S.[238,] at 242, 89 S.Ct.[1709,] at 1712. The petition must

be filed in the court where the earlier conviction took place to

attack the constitutional validity of the prior conviction. A

defendant successful in such a proceeding may then expose

the enhanced sentence on the subsequent conviction to a

collateral attack as well.
-4-

State v. Prince, 781 S.W.2d 846, 852 (Tenn. 1989). 

Just as the underlying convictions in Prince were facially valid, the

February 1991 conviction Appellant seeks to challenge is facially valid. The

Appellant’s signature does indeed appear under the waiver of counsel portion of

the document. Therefore, it is facially valid. See State v.McClintock, 732

S.W.2d 268 (Tenn. 1987); State v. Cottrell, 868 S.W.2d 673 (Tenn. Crim. App.

1992). This Court is unable to determine the merit of his allegation regarding the

1991 guilty plea upon this record. The appropriate route for overturning a prior

conviction as a result of an invalid waiver of the right to counsel is to file a postconviction proceeding within the statute of limitations.

Because Appellant has failed to follow the procedure set out by the

Tennessee Supreme Court in State v. Prince, the judgment of the trial court is

affirmed. 

_________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JOE G. RILEY, JUDGE