FILED

September 23, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9709-CC-00394

)

Appellee, )

 ) LINCOLN COUNTY

V. ) 

)

) HON. CHARLES LEE, JUDGE

TIMM Y BEAVERS, ) 

)

Appellant. ) (FIRST DEGREE MURDER)

FOR THE APPELLANT: FOR THE APPELLEE:

CURTIS H. GANN JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

DONNA L. HARGROVE ELIZABETH B. MARNEY

Assistant Public Defender Assistant Attorney General

2nd Floor, Cordell Hull Building

JOHN H. DICKEY 425 Fifth Avenue North 

Assistant Public Defender Nashville, TN 37243

MICHAEL D. RANDLES WILLIAM MICHAEL McCOWN

Assistant Public Defender District Attorney General

P.O. Box 1119

Fayetteville, TN 37334 WEAKLEY E. BARNARD

Assistant District Attorney General

GERALD L. GULLEY, JR. Marshall County Courthouse, Room 407

P.O. Box 1708 Lewisburg, TN 37091 

Knoxville, TN 37901-1708

(ON APPEAL ONLY)

OPINION FILED ________________________

AFFIRMED; APPEAL DISMISSED 

THOMAS T. WOODALL, JUDGE
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OPINION

This appeal by Defendant Timmy Beavers attempts to present a certified

question of law pursuant to Rule 3(b) of the Tennessee Rules of Appellate

Procedure and Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The

certified question Defendant attempts to present to this Court involves the trial

court’s denial of a motion to suppress certain evidence obtained from Defendant.

Because we conclude that this matter is not properly before us, the judgment below

is affirmed and the appeal is dismissed. 

On October 2, 1995, a search warrant was issued and samples of Defendant’s

hair, saliva, and blood were obtained. On September 17, 1996, Defendant was

indicted on one count of premeditated first degree murder. Defendant filed a motion

to suppress the DNA samples, and following a hearing, the trial court ordered the

evidence to be suppressed. On April 22, 1997, the State filed a second motion to

obtain hair, saliva, and blood samples from Defendant. The trial court granted the

State’s motion and issued an order and second search warrant to obtain the

samples from Defendant. On May 23, 1997, a superseding indictment was issued,

charging Defendant with one count of premeditated murder and one count of murder

committed during an attempted rape. The initial indictment was dismissed. On June

30, 1997, Defendant filed a second motion to suppress the seized samples of hair,

saliva, blood, and some clothing. The trial court denied this motion on September

16, 1997. A judgment was entered on July 29, 1997, on Defendant’s “best-interest”

guilty plea to second degree murder with an agreed sentence of thirty (30) years.

The judgment form reflects that Defendant reserved the right to appeal the trial
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court’s “ruling on motion to suppress.” Defendant filed his notice of appeal on

August 29, 1997. 

Rule 37(b)(2)(I) of the Tennessee Rules of Criminal Procedure provides in

pertinent part as follows:

(b) An appeal lies from any order or judgment in a criminal

proceeding where the law provides for such appeal, and

from any judgment of conviction: (2) upon a plea of guilty

or nolo contendere if: (I) defendant entered into a plea

agreement under Rule 11(e) but explicitly reserved with

the consent of the State and of the court the right to

appeal a certified question of law that is dispositive of the

case.

Our supreme court has also prescribed guidelines that must be adhered to in

order to perfect an appeal by Rule 37(b)(2)(I). In State v. Preston, 759 S.W.2d 647

(Tenn. 1988), and again in State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996), the

court held: 

 This is an appropriate time for this Court to make explicit

to the bench and bar exactly what the appellate courts will

hereafter require as prerequisites to the consideration of

the merits of a question of law certified pursuant to Tenn.

R. Crim. P. 37(b)(2)(I) or (iv). 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. For example, where

questions of law involve the validity of searches and

the admissibility of statements and confessions, etc.,

the reasons relied upon by defendant in the trial court

at the suppression hearing must be identified in the

statement of the certified question of law and review

by the appellate courts will be limited to those passed

upon by the trial judge and stated in the certified

question, absent a constitutional requirement otherwise.

Without an explicit statement of the certified question,
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neither the defendant, the State nor the trial judge can

make a meaningful determination of whether the issue

sought to be reviewed is dispositive of the case. Most of

the reported and unreported cases seeking the limited

appellate review pursuant to Tenn. R. Crim. P. 37 have

been dismissed because the certified question was not

dispositive. Also, the order must state that the certified

question was expressly reserved as part of a plea

agreem ent, that the State and the trial judge consented to

the reservation and that the State and the trial judge are of

the opinion that the question is dispositive of the case. Of

course, the burden is on defendant to see that these

prerequisites are in the final order and that the record

brought to the appellate courts contains all of the

proceedings below that bear upon whether the

certified question of law is dispositive and the merits

of the question certified. No issue beyond the scope of

the certified question will be considered. 

Pendergrass, 937 S.W.2d at 836-37 (citing Preston, 759 S.W.2d at 650) (em phasis

added). The Defendant bears the burden of "reserving, articulating, and identifying

the issue." Pendergrass, 937 S.W .2d at 838. 

In the present case, it is clear from the record that Defendant, with the

agreement of the State and the trial court, attempted to reserve a certified question

regarding the trial court’s denial of Defendant’s motion to suppress the DNA

evidence samples. It is equally clear, however, that Preston, Pendergrass, and Rule

37 of the Tennessee Rules of Criminal Procedure have not been followed. The

judgment in this case indicates only that “Defendant reserves right to appeal court’s

ruling on m otion to suppress.” Therefore, the certified question is not stated so as

to clearly identify the scope and the limit of the legal issue reserved. The reasons

relied upon by Defendant in the trial court at the suppression hearing are not

identified in the statement of the certified question of law. Given the clear, mandatory

language of Preston and Pendergrass, we must conclude that this appeal is not
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properly before us. Accordingly, the judgment below is affirm ed and the appeal is

dismissed.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge

___________________________________

L.T. LAFFERTY, Special Judge