State v. Milton Spears, Jr.

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 1997 SESSION

FILED

July 10, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, )

) C.C.A. NO. 02C01-9606-CR-00197 Appellee, )

) SHELBY COUNTY

VS. )

) HON. BERNIE WEINMAN, MILTON SPEARS, JR., ) JUDGE )

Appellant. ) (Habitual motor vehicle offender)

FOR THE APPELLANT: FOR THE APPELLEE:

A C WHARTON, JR. JOHN KNOX WALKUP Public Defender Attorney General & Reporter

WALKER GWINN SARAH M. BRANCH Asst. Public Defender Counsel for the State 201 Poplar, Suite 2-01 450 James Robertson Pkwy. Memphis, TN 38103 Nashville, TN 37243-0493 (On appeal)

WILLIAM L. GIBBONS

SHERRY BROOKS District Attorney General Asst. Public Defender 201 Poplar REGINALD HENDERSON Memphis, TN 38103 Asst. District Attorney General (At trial level) 201 Poplar St., Suite 301 Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge

OPINION

The Shelby County District Attorney General petitioned to have the

defendant declared an habitual offender pursuant to the Motor Vehicle Habitual

Offenders Act, T.C.A. § 55-10-601 et seq. The defendant filed a motion to dismiss on

double jeopardy grounds which the court below dismissed. Subsequently, the court

below entered a consent order declaring the defendant an habitual offender and barring

him from operating a motor vehicle in the State of Tennessee. The defendant signed this

order. He now appeals, alleging that the order violates his constitutional protections

against double jeopardy. We affirm the judgment below.

The State contends that the defendant has waived his right to appeal the

order because he agreed to it and did not reserve the double jeopardy issue as a certified

question of law. In other words, the State asserts, the consent order has the effect of a

guilty plea. We agree that the consent order is, in effect, the civil equivalent1 of a guilty

or nolo contendere plea. However, a guilty plea does not automatically constitute a

waiver of a double jeopardy claim where, judged on the face of the record, the charge is

one which the State may be constitutionally prohibited from prosecuting. Menna v. New

York, 423 U.S. 61 (1975). See also State v. Rhodes, 917 S.W.2d 708, 711 (Tenn. Crim.

App. 1995). Here, the face of the record reveals that the State is seeking to sanction the

defendant based upon several criminal offenses of which he has been previously

convicted. Under Menna, we hold that a double jeopardy claim is not waived by a

consent order under these circumstances.

1 Proceedings to declare a person to be an habitual offender under the Act are civil in nature, not crim inal. Eve rhart v. State, 563 S.W .2d 795, 797 (Tenn. Crim. App. 1978). Appeals from these proceedings are, however, to this Court. T.C.A. § 55-10-614.

3

Having won that battle, however, the defendant loses the war. Our

Supreme Court has previously decided that

the revocation of all driving privileges of one declared to be an habitual offender under the Act is nothing more than the deprivation of a privilege, is <remedial in nature,’ and is not intended to have the effect of imposing <punishment’ in order to vindicate public justice. Consequently, the . . . proceeding to have the defendant declared to be an habitual offender and to have his driving privileges revoked does not subject him to double jeopardy.

State v. Conley, 639 S.W.2d 435, 437 (Tenn. 1982). The defendant requests us to

examine the continuing validity of this holding in light of United States v. Halper, 490 U.S.

435 (1989), and Montana Dept. of Revenue v. Kurth Ranch, ___ U.S. ___ (1994). We

have done so and find no reason to assume that our Supreme Court would change its

holding in Conley as a result of these cases. Accordingly, we affirm the judgment below.

______________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________

GARY R. WADE, Judge

______________________________

THOMAS T. WOODALL, Judge