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State v. Turner6/16/1999
00326, Blount County (Tenn. Crim. App. filed September 15, 1998, at Knoxville). The prior arrest warrant and the 1990 judgment provide sufficient evidence to support the jury's Conclusion that the defendant had been previously convicted of DUI.
Next, the defendant argues that the trial court erred in denying his motion to dismiss the indictment and/or strike the enhancement factors because the court minutes from the 1990 DUI conviction fail to reflect that the special Judge who accepted the guilty plea was duly elected and was administered the oath of office pursuant to T.C.A. § 17-2-118 and § 17-2-120. He also argues that the trial court erred by not allowing him to present as a defense to second-offense DUI his contention that the 1990 judgment was facially invalid and thus could not serve as a basis for enhancement.
The record supporting the 1990 judgment consists of the arrest warrant and the court minutes of a guilty plea hearing. The court minutes begin with the following statement: "COURT MET PURSUANT TO ADJOURNMENT, PRESENT AND PRESIDING THE HONORABLE SETH NORMAN, SPECIAL JUDGE FOR THE HONORABLE JAMES R. EVERETT JR., JUDGE OF THE PROBATE COURT FOR DAVIDSON COUNTY, TENNESSEE . . . ." The record fails to show that the 1990 judgment was ever reviewed by direct appeal, post-conviction petition, or petition for writ of habeas corpus.
The documents in the record pertaining to the 1990 conviction show on their face that the convicting court had jurisdiction over the subject matter and the parties, and thus, "`we must indulge every intendment in favor of the validity of the judgments.'" State v. McClintock, 732 S.W.2d 268, 271 (Tenn. 1987)(quoting Smith v. Leedy, 42 Tenn. App. 117, 123, 299 S.W.2d 29, 31 (1956)). Moreover, the record gives every indication that the special Judge was, at a minimum, a de facto Judge, that is, that he acted "with color of right" and was "regarded as, and the reputation of, exercising the judicial function he assum ." 48A C.J.S. Judges § 2 (1981), quoted in State ex rel. Newsom v. Biggers, 911 S.W.2d 715, 718 (Tenn. 1995). There was no objection to the special Judge's exercise of authority at the time the plea was entered in 1990, and no appeal was taken from the resulting conviction. " ike any judgment, a presumption of regularity in the proceedings attaches upon becoming final." McClintock, 732 S.W.2d at 270. Because the special Judge acted with de facto authority and because this authority was not challenged during trial or on appeal, the defendant cannot now attack the integrity of the judgment. Biggers, 911 S.W.2d at 719.
Each of the defendant's challenges to his conviction lacks merit. Accordingly, the trial court's judgment is affirmed.
JOHN H. PEAY, JUDGE
CONCUR:
JERRY L. SMITH, JUDGE
THOMAS T. WOODALL, JUDGE
Page 1 2 3 4 Tennessee DUI Attorneys
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