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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