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State v. Thomas3/4/2003
There is no transcript of the trial court hearing available in the appellate record. In fact, the record on appeal consists of the original petition to have Appellant declared an Habitual Motor Vehicle Offender, the consent order declaring him to be an Habitual Motor Vehicle Offender entered July 26, 1994, Appellant's petition to remove his Habitual Motor Vehicle Offender status, and the order of the trial court denying the petition. Attached to Appellant's petition is a document purporting to be a printout of the Tennessee Department of Safety Driver License Record of Appellant, but there is no indication that this document was made an exhibit at the hearing in the trial court.
The record, such as it is, reflects that there were three convictions which were used to support the consent order declaring Appellant to be an habitual motor vehicle offender. These convictions were as follows: a DUI conviction on March 12, 1991 and two convictions for driving while his license was cancelled, suspended, or revoked on January 23, 1992 and March 10, 1994. Tennessee Code Annotated section 55-10-615(c) became effective on July 1, 2000. In pertinent part, that subsection states that
f a person is declared to be a habitual motor vehicle offender and one (1) or more of the requisite convictions was for . . . driving on a cancelled, suspended, or revoked license as prohibited by § 55-50-504 where the underlying violation of § 55-50-504 was not an offense enumerated in § 55-10-603(2)(A), such person may petition the court where such habitual offender finding occurred or any court of record having criminal jurisdiction in the county in which such person then resides for immediate restoration of the privilege to operate a motor vehicle in this state. After reviewing such petition, if the court finds that one (1) or more of such requisite convictions was for . . . § 55-50-504 where the underlying offense was not one (1) enumerated in § 55-10- 603(2)(A), then the court shall restore to such person the privilege to operate a motor vehicle in this state upon such terms and conditions as the court may prescribe, subject to other provisions of law relating to the issuance of operators' or chauffeurs' licenses.
Included within the offenses enumerated in Tennessee Code Annotated section 55-10-603(2)(A), is: "(viii) violation of § 55-10-401, prohibiting intoxicated or drugged persons from driving," i.e. DUI. Our review of this case is severely limited by the nature of the record on appeal. As stated above, there is no transcript of the proceeding in the trial court. There is nothing in the record to indicate that any document was properly introduced as an exhibit in the trial court. In its order denying the petition, the trial court found that the matter came on to be heard upon the petition "filed by [Appellant], statements of counsel, and the record as a whole." Further, the trial court specifically found in its order that Appellant offered no proof at the hearing that the underlying offense resulting in the cancellation, suspension, or revocation of his license was not an offense enumerated in Tennessee Code Annotated section 55-10-603(2)(A). In State v. Cooper, 736 S.W.2d 125 (Tenn. Crim. App. 1987), this court held that:
Before an exhibit may be considered by this Court, it must have been (a) received into evidence, (b) marked by the trial judge, clerk, or court reporter as having been received into evidence as an exhibit, (c) authenticated by the trial judge, and (d) included in the transcript of the evidence transmitted to this court. (Citations omitted).
The inclusion of a document in what has been commonly referred to as the `technical record' will not, as a ma
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