# FILED
July 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C

01-9710-CC-00471 Appellee, ) ) HUMPHREYS COUNTY VS. ) (No. 9156 Belo w) ) ROBERT FOX, ) The Hon. All en W. Wallace ) Appellant. ) (Cer tifi ed Qu esti on of

Law) ) O R D E R This mat ter i s before the Court upon the state’s Motion to Dismiss. Specifi cally, the state contends that the appellant failed to properl y certify the questi ons of law raised in this ap peal. The appellant opposes the motion.Upon reviewing the pleadings and the entire record on appeal , we find that the appellant has failed to properly
reserve the right to

appeal a certified question of law, and therefore, we dismiss the appeal.

The appellant pled guilty to possession of over 70 pounds of marijuana. Under special conditions, the judgment states “[t]he Court’s rulings on pre-trial motions are cetified [sic] for appeal as dispositive. It is understood that the defendant will file a notice of appeal and receive a heari ng on the merits of the appeal in the Court of Criminal Appeals.” The judgment is signed by the trial judge and by the attorney for the state. There are two pre-trial orders. One order overr ules a motio n to inquire whether circumstances

existwhich would creat e the appearance that the court w as not impartial, and the other order denies the appellant’s motion to suppress. No speci fic issues regarding the suppression are set forth in the order.

In State v. Preston , 759 S.W.2d 647 (Tenn. 1988), our Supreme Court held:
Regardless of what has appeared in prior petitions, orders, colloquy in open court or otherwise, the

final order or judgment from which the time begins to run to pursue a

T.R.A.P. 3 appeal must contain a stateme nt of the disposit ive certified question of law reserved by defendant for appellate review and

the question of law must be stated so as to clea rlyidentify the scope and the limits of the legal issue reserved.

Id

. at 650. See also , State v. P enderg rass , 937 S.W.2d 834, 837-38 (Tenn. 1996). It appears that ou r Suprem e Court relaxed the Preston requirements to some ext ent by-2-

allowing a certifie

d question to

be incorporated in an independent document. See State v. Irwin , 962 S.W.2d 477, 47 9 (Tenn. 1998).

In its motion to dismiss, the state contends that the appellant has failed to comply with any of the requirements set fort h i n Preston . This conclusory statement is overbroad. It is clear that the pre-trial orders wer e incorporated in the judg ment and that the trial court and the attorn ey for the state, by their s ignatures, consented to the reservation of the issues raised in those orders and believed t he issues to be disp ositive of the case. However, a “question of law must be s tated so as to clearly identify thescope and the limits of

the legal issu e reserved.” Preston , 759 S.W.2d 647, 650. Here, the issues are not clearly state d in the judgment

or in the pre-trial or

ders. Moreover, we are unable to determine how the issue of whether the trial cour t erred by denying

a motion to recuse himself in this case could be dispositive.

Accordin gly, after carefully revi ewing the record and the pleadings in this case, we find that the appellant has failed to pr operly reserve the

right to appeal a certified question of law in accordance with th e requirements of Tenn. R. Cri m. P. 37, and the appeal is hereby dismiss ed. Costs are taxed to the appellant.

________________________________ DAVID H. WELLES, JUDGE CONCUR:

________________________________ JERRY L. SMITH, JUD GE

________________________________ THOMAS T. WOODALL, JUDGE