# FILED
July 10, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT JAC KSON MA Y 1997 SESSION

STA TE OF TENN ESSEE, ) ) C.C.A . NO. 02C01-9 606-CR-00197 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. BERNIE WEINMAN, MILTON SPE AR S, JR., ) JUDGE ) Appellant. ) (Habitual motor vehicle offe nder)

FOR TH E APPEL LANT: FOR THE APPELLEE:
A C WHA RTON, JR. JOHN KNOX WALKUP Public Defender Attorney Gen eral & Repor ter WALKER GWINN SARA H M. BRA NCH Asst. Public

Defender Counsel for the State 201 Poplar, Sui te 2-01 450 Jame s Rob erts on Pk wy. Memphis, TN 381 03 Nashvil le, TN 37243-0493 (On appeal) WILLIA M L. GIBB ONS SHERRY BROOKS Distric t Attorney General Asst. Public

Defender 201 Poplar REGINA LD HENDER SON Memphis, TN 381 03 Asst. Dist rict Attor ney General (At trial level) 201 Poplar St., Suite 301 Memphis, TN 381 03

OPINION FILE D:____________________

AF FIRMED
JOHN H. PE AY, Judge1 Proceedi ngs to decl are a per son to be an habi tual offender under t he Act ar e civ il in n atur e, not crim inal. Eve rhar t v. State , 563 S. W .2d 795, 797 (Tenn. Crim. App. 1978). Appeal s from these proceedi ngs are, however, to t his Cour t. T.C.A. § 55-10- 614. 2 O P I N I O N

The Shelby Cou nty Dist rict Attor ney General petitioned to hav e the defendant declared an habi tual offen der pursuant to the M otor Vehicle Habitual Offende rs Act, T.C. A. § 55-10-601 et seq. The defendant fil ed a motion to dis miss on double jeopardy g rounds whi ch the court bel ow dismis sed. Sub seq uently, the court below entered a consent

order declar ing the defendant an h abitual offender and barring him from operating a motor vehicle in the State of T ennessee. The de fendant signed this order. He now app eals, alleg ing that the o rder vi olates his constitut iona l protections again st do uble jeop ardy. W e af firm the j udgm ent b elow.

The State contends that the defendant has waived his right toappeal the order because he agr

eed to it and did not reserve the double jeopardy issue as a certified question of law. In other wor ds, the S tateass ert s, t he co nsen t order has t he eff ect of a guilty plea. We agree that the conse nt order is, in effect, the civil equival ent 1 of aguilty
or nolo contendere plea. However, a guilty plea does not autom atically constitute a waiver of a double jeopardy claim where, judged on th e face of the reco rd, the charge is
one which theState may be constitutionally prohibited from pr osecuting. Menna v. N ew York , 423 U.S. 61 (1975). See also State v. Rh odes , 917 S.W.2d 708, 71 1 (Tenn. Crim

. App. 1995). Here, the face of the recor d reveals that the State i s seeking to sanction the defendant based upon several crimi nal offenses of which he has been previously convicted. Under Menna , we hol d tha t a do uble jeop ardy c laim is not waived by a consent order under these circumstances.3 Having won that batt le, however, the defendan t loses the war. Our Supreme Court has

previous ly decided that the revocati on of all d rivingprivil eges of one declar ed to be an habitual offe nder under the Act is nothing more than the deprivati on of a privilege, is < remedial in nat u re,’ a nd is not intended to have the e ffe ct of im posing < punishment’ in order to vindicat e public justice. Conse quen tly, the . . . proceeding to have the defendant dec lared to be an habitual offender and to have his driving privileges rev oked does not subject him t o dou ble je opa rdy. State v. Conley , 639 S.W.2d 435, 437 ( Tenn. 198 2). The defendant req uests us to examine the continuingvalidit yof th is h oldi ng i n li ght

of United States v . Halper , 490 U.S. 435 (1989), and Montana Dept. of Revenue v. Kurth Ranch , ___U

. S

. ___( 1 9 9 4 )

. We have done so and find no reason to assumethat our Supreme Court wou ld change its holding in Conley

as a result of these cases. Accor dingl y, we af firm the j udgm ent b elow.

______________________________ JOHN H. PEA Y, Judge

CONCUR:

______________________________ GARY R. W ADE, Jud ge

______________________________ THOMAS T. W OODALL , Judge