State of Tennessee v. Espiridion Evangelista Kolimlim, III

11/07/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 11, 2022 Session

STATE OF TENNESSEE v. ESPIRIDION EVANGELISTA KOLIMLIM, III

Appeal from the Criminal Court for Wilson County

No. 95CC2-2019-CR-1497 Michael Wayne Collins, Judge

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No. M2020-01363-CCA-R3-CD

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Defendant, Espiridion Evangelista Kolimlim, III, appeals the criminal court’s dismissal of

his general sessions appeal from payment of a traffic citation after he filed a motion to

withdraw payment of the citation. Following our review of the entire record, oral

arguments, and the parties’ briefs, we dismiss the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ. joined.

Stanley F. LaDuke, Knoxville, Tennessee, for the appellant, Espiridion Evangelista

Kolimlim, III.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant

Attorney General; Jason L. Lawson, District Attorney General; and Brian Fuller, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Defendant, a truck driver with a California commercial driver’s license, was issued

a traffic citation on May 8, 2019, by a Tennessee State Trooper for failing to exercise due

care in a traffic accident in violation of Tennessee Code Annotated section 55-8-136.

Defendant’s court date in the Wilson County General Sessions Court was set for July 11,

2019. The citation was signed by Defendant in the lower-left-hand shaded box

acknowledging receipt of the citation and that his signature was not an admission of guilt.

Defendant did not sign the waiver on the lower-right-hand side of the citation. The issuing

trooper’s signature appears on Defendant’s waiver signature line on the lower-right-hand

side of the citation as well as on the trooper’s signature line on the lower-left-hand side.

There was a box checked on the lower-right-hand side of the citation that contained the

following language: “YOU MAY PAY BY MAIL. IF YOU WISH TO PLEAD GUILTY

TO THE OFFENSE CHARGED AGAINST YOU, YOU MUST SIGN THE WAIVER

PRINTED BELOW AND MAIL THIS COPY OF THE CITATION AND THE

PRESCRIBED AMOUNT SET BY THE COURT.” The citation further read:

In consideration of my not appearing in Court, I, the undersigned, do

hereby enter my appearance on the Affidavit for the offense charged

on this notice and WAIVE the reading of the Affidavit in the above

named cause and the right to be present at the trial of said action. I

hereby enter a plea of Guilty and waive the right to prosecute, appeal,

or error proceedings. I understand the nature of the charge(s) against

me; I understand my right to have counsel and I waive this right and

the right to a continuance. I waive my right to trial before a judge or

jury. I plead GUILTY to the charge(s), being fully aware my

signature to the plea will have the same effect as a judgment of this

court and that a record of it will be sent to the Tennessee Department

of Safety Records Section.

Defendant did not seek a continuance, as was his right set forth in the citation, and it is

undisputed that on July 24, 2019, he paid the citation online in lieu of appearing in general

sessions court. A copy of the online payment receipt was not included in the record on

appeal. The back side of the citation, containing the disposition/judgment information, is

included in the record on appeal and indicates that the citation was disposed of by the

Wilson County General Sessions Court. The disposition/judgment information does not

reflect the date the case was settled, is not signed by the general session judge, and none of

the boxes for “guilty,” “not guilty,” “dismissed,” or “other,” are checked. There is only a

numerical code in a small box marked “Disposition.”

On August 26, 2019, Defendant filed a “Motion To Hear or Rehear Traffic Case,

Set Aside Payment of Traffic Citation For Mistake And/Or To Set Aside The Retired Status

and Judgment of Traffic Citation.” In his motion, Defendant asked the general sessions

court to “set aside his payment of his traffic citation for mistake and/or to set aside the

‘retired’ status and judgment resulting from the payment of his traffic citation pursuant to

Tenn. Code Ann. § 55-10-207(e)[.]” Defendant, relying on Williams v. Brown, 860 S.W.2d

854, 856 (Tenn. 1993), argued that payment of the citation “was not a guilty plea, nor an

acknowledgement of guilt” and has had a “negative effect on his commercial driving

privileges.” He further argued that when he paid the citation, he did not know that this

conviction for “Drivers to Exercise Due Care” would seriously affect his commercial

driving privileges and his ability to work and that paying the citation was a “mistake of

fact.” A handwritten note on Defendant’s motion indicates that the case was set to be heard

on November 14, 2019. On November 6, 2019, Defendant filed an “Argument in Support

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of Motion To Hear or Rehear Traffic Case, Set Aside Payment of Traffic Citation For

Mistake And/Or To Set Aside The Retired Status and Judgment of Traffic Citation.” In

another handwritten note on Defendant’s argument in support of his motion, the general

sessions court denied the motion on November 14, 2019. On November 20, 2019,

Defendant appealed the general sessions court’s denial of his motion to the trial court, and

the State filed a response.

On June 4, 2020, the trial court held a hearing on the matter. There is no transcript

of the hearing; however, a statement of the evidence filed by Defendant and approved by

the trial court, reflects that the court granted Defendant’s motion to set aside the judgment

of the general sessions court and set the case for trial on September 3, 2020. The record

contains a docket sheet for June 4, 2020, which states, “9/3/20 @ 9 for trial.” At the hearing

on September 3, 2020, the State argued:

And, Judge, it’s been here a couple of times, but the State’s position

of this is, it’s an appeal from General Sessions on a citation for due

care, I believe. Judge, he’s [sic], the State’s position is, this isn’t a

proper appeal. The ticket was paid, went in as a guilty plea in July.

He came back, I want to say two months later, maybe three months

later, with [trial counsel], made a motion to set aside his payment of

that ticket. They subpoenaed the officer, put it on a District

Attorney’s day in General Sessions[.]

* * *

Judge Berry denied that motion, to my understanding, and told him

he could appeal. But what, my understanding from the clerk, what

he could appeal was, there was a pay plan that was set up because

there was additional subpoenas that have to be set for that hearing,

and so they put him on a pay plan. And that was what was appealed,

or what they thought was appealed. Not the original ticket, because

that was two, three months before; had already been sent into the

State; was already his history.

So, the State’s position is, this is not a proper appeal within the ten

days from, from the finding of guilty or payment of ticket; however,

you want to say it. And this should be dismissed and sent back to

General Sessions.

The State also argued that Defendant’s assertion that payment of the fine and costs

did not amount to a plea, and would result in a “never ending time frame for someone to

come back in an appeal.” Defense counsel argued that Defendant was appealing the denial

of his motion to set aside payment. He again argued that pursuant to Williams v. Brown,

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“payment of the citation is not [. . .] a finding of guilt or a conviction.” Therefore, the trial

court had jurisdiction to set aside Defendant’s payment of the citation in this case.

The trial court referenced the court docket sheet during the hearing noting that the

docket entry for June 4, 2020, only stated “for trial.” The trial court further pointed out

that there was no order filed from the June 4 hearing; therefore, it was unable to determine

if the notation “for trial,” meant a trial on the motion or to hear the case de novo. The trial

court ultimately denied Defendant’s “Motion To Hear or Rehear Traffic Case, Set Aside

Payment of Traffic Citation For Mistake And/Or To Set Aside The Retired Status and

Judgment of Traffic Citation.”

Defendant filed a notice of appeal. The State filed a motion to dismiss the appeal

based on lack of jurisdiction, and Defendant filed a response. This court denied the motion,

holding that the case should be fully briefed to ensure adequate review.

Analysis

On appeal, Defendant argues that the trial court abused its discretion “in granting

the State’s verbal motion to deny Defendant’s written motion to set aside his ‘payment in

lieu of appearance’ after the motion had been previously granted and the case set for trial

on the merits based upon application of the facts and law.” He further contends that the

record “contained clear evidence that a disposition of guilt or conviction was never entered

in this case” because the disposition page of the original traffic citation “did not have a

judge’s signature and did not show a conviction or guilt.” The State responds that the

appeal should be dismissed because Defendant’s motion to withdraw his guilty plea in the

general sessions court was not timely filed. The State further contends that to the extent

this court “finds some deficiency with the general sessions judgment, such would also

support dismissal of this appeal.”

Initially, we will address alleged deficiencies in the general sessions judgment form

located on the back of the citation. Defendant was issued a citation for violating Tennessee

Code Annotated § 55-8-136, a Class C misdemeanor. The disposition/judgment

information contained on the back of the citation does not reflect the date that it was settled,

the general session judge’s signature or show that any of the boxes for “guilty,” “not

guilty,” “dismissed,” or “other,” were checked. There is only a numerical code in a small

box marked “Disposition.” This court has said:

The General Sessions Court is not a court of record in Tennessee.

There are no signed minutes or other means of verifying a judgment

that is not complete on its face. An unsigned judgment is void and

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cannot be used as proof of a prior conviction for the purpose of

enhancing the sentence for a subsequent conviction.

State v. McJunkin, 815 S.W.2d 542, 543 (Tenn. Crim. App. 1991). Although the parties

agreed that Defendant paid his traffic citation online, there is nothing in the record

concerning the procedures for verification of online payments and entry of conviction. The

record on appeal also lacks any information explaining the numerical code listed in the

disposition section of the judgment form. Therefore, from the record, we cannot discern

how the online payment process relates to the general sessions judge’s signature, and we

are unable to determine whether the judgment is void in this case because it was not signed.

When a party seeks appellate review, there is a duty to prepare a record which conveys a

fair, accurate and complete account of what transpired with respect to the issues forming

the basis of the appeal. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State

v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). As a result, we are unable to determine

whether the judgment is valid, and we are without jurisdiction to review the merits of

Defendant’s claim, and accordingly dismiss his appeal.

Even if the judgment in this case were determined to be valid, Defendant is not

entitled to relief. Tennessee Code Annotated § 55-10-207(f) provides that “[p]rior to the

time set for the person to appear in court to answer the charge, the person cited may elect

not to contest the charge and may, in lieu of appearance in court, submit the fine and costs

to the clerk of the court.” Defendant’s assertion that payment of a fine in lieu of appearing

in general sessions court is not a guilty plea or a conviction is misplaced. In State v. Julie

A. Morgan (Moran), No. E2017-00532-CCA-R3-CD, 2018 WL 1391629, at *2 (Tenn.

Crim. App. Mar. 20, 2018), no perm app filed, this court said:

“[T]he payment of a traffic fine [pursuant to section 55-10-207(f)] is

very closely analogous to a plea of nolo contendere.” Williams v.

Brown, 860 S.W.2d 854, 856 (Tenn. 1993). A defendant who pleads

nolo contendere “does not expressly admit [her] guilt, [but] such a

defendant effectively consents to being punished as if [she] were

guilty.” State v. Crowe, 168 S.W.3d 731, 747 (Tenn. 2005). “By

entering a nolo contendere plea, a defendant waives several

constitutional rights and consents to the judgment of the court.” Id.

at 748. Contrary to the Appellant’s argument, her payment of the

fine and costs resulted in the entry of a judgment of conviction

against her for violation of Tennessee Code Annotated section 55-8-

152.

Id.; see also State v. Daljit Singh, No. E2021-01040-CCA-R3-CD, 2022 WL 2373437, at

*2 (Tenn. Crim. App. June 30, 2022), no perm. app. filed. Defendant’s payment of the fine

in this case resulted in the entry of a judgment of conviction against him for a violation of

Tennessee Code Annotated section 55-8-136.

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Tennessee Rule of Criminal Procedure 32(f) provides that a trial court may grant a

motion to withdraw a guilty plea for any fair and just reason before the sentence has been

imposed. Tenn. R. Crim. P. 32(f)(1). After the sentence has been imposed but before a

judgment becomes final, “the court may set aside the judgment of conviction and permit

the defendant to withdraw the plea to correct manifest injustice.” Tenn. R. Crim. P.

32(f)(2). “In general sessions court, a judgment becomes final after ten days.” Tenn. Code

Ann. § 27-5-108(a); Julie A. Morgan (Moran), 2018 WL 1391629, at *2; Daljit Singh,

2022 WL 2373437, at *3. In this case, Defendant paid his traffic citation on July 24, 2019.

He did not file his motion to withdraw his guilty plea until August 26, 2019, well after any

judgment of conviction had become final. Therefore, any challenge to Defendant’s

conviction for failing to exercise due care in a traffic accident was “necessarily limited to

post-conviction remedies.” Morgan at *2. In this case, Defendant’s motion failed to “state

a cognizable claim for any form of post-conviction relief.” Id. Accordingly, the trial court

properly dismissed Defendant’s appeal from the general sessions court, and he is not

entitled to relief.

CONCLUSION

Based on foregoing analysis, we dismiss the appeal.

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JILL BARTEE AYERS, JUDGE

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