FILED

July 30, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, )

) C.C.A. NO. 01C01-9710-CC-00471

Appellee, )

) HUMPHREYS COUNTY

VS. ) (No. 9156 Below)

)

ROBERT FOX, ) The Hon. Allen W. Wallace

)

Appellant. ) (Certified Question of Law)

)

O R D E R

This matter is before the Court upon the state’s Motion to Dismiss.

Specifically, the state contends that the appellant failed to properly certify the questions of

law raised in this appeal. 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 hearing 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 overrules a motion to inquire whether

circumstances exist which would create the appearance that the court was not impartial,

and the other order denies the appellant’s motion to suppress. No specific 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 statement of the dispositive

certified question of law reserved by defendant for appellate review and the

question of law must be stated so as to clearly identify the scope and the

limits of the legal issue reserved.

Id. at 650. See also, State v. Pendergrass, 937 S.W.2d 834, 837-38 (Tenn. 1996). It

appears that our Supreme Court relaxed the Preston requirements to some extent by
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allowing a certified question to be incorporated in an independent document. See State

v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998).

In its motion to dismiss, the state contends that the appellant has failed to

comply with any of the requirements set forth in Preston. This conclusory statement is

overbroad. It is clear that the pre-trial orders were incorporated in the judgment and that

the trial court and the attorney for the state, by their signatures, consented to the

reservation of the issues raised in those orders and believed the issues to be dispositive

of the case. However, a “question of law must be stated so as to clearly identify the scope

and the limits of the legal issue reserved.” Preston, 759 S.W.2d 647, 650. Here, the

issues are not clearly stated in the judgment or in the pre-trial orders. Moreover, we are

unable to determine how the issue of whether the trial court erred by denying a motion to

recuse himself in this case could be dispositive. 

Accordingly, after carefully reviewing the record and the pleadings in this

case, we find that the appellant has failed to properly reserve the right to appeal a certified

question of law in accordance with the requirements of Tenn. R. Crim. P. 37, and the

appeal is hereby dismissed. Costs are taxed to the appellant.

________________________________

DAVID H. WELLES, JUDGE

CONCUR:

________________________________

JERRY L. SMITH, JUDGE

________________________________

THOMAS T. WOODALL, JUDGE