IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 2, 2019 Session

STATE OF TENNESSEE v. JOSEPH FRANK BOLKA, III

Appeal from the Circuit Court for Tipton County

No. 9272 Joe H. Walker, III, Judge

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No. W2018-00798-CCA-R3-CD

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The Defendant, Joseph Frank Bolka, III, entered open guilty pleas to possession of 0.5 

grams or more of methamphetamine with the intent to deliver and simple possession of 

marijuana, and he was sentenced to serve eight years in the Community Corrections 

program. The record reflects that the Defendant attempted to reserve a certified question 

regarding the legality of the traffic stop which led to the discovery of the drugs. Because 

the notice of appeal was untimely and because the record reflects that the question was 

not properly preserved, we dismiss the appeal. 

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.

GLENN and TIMOTHY L. EASTER, JJ., joined.

Vicki L. Green, Millington, Tennessee, for the Appellant, Joseph Frank Bolka, III.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant 

Attorney General; Mark E. Davidson, District Attorney General; and James Walter 

Freeland, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant was driving in Tipton County on December 15, 2016, when 

Deputy George Finney of the Tipton County Sheriff’s Office observed him cross the 

yellow line separating his lane of traffic from oncoming traffic. Deputy Finney 

conducted a traffic stop which ultimately led to the discovery of the drugs in question. 

04/30/2019
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The Defendant filed a motion to suppress the evidence obtained during the search of his 

vehicle and to suppress his statements to police, generally alleging that there was no 

probable cause for the stop, no probable cause “for the officer waiting twenty-seven 

minutes” prior to notifying dispatch, and no evidence that a traffic offense had been 

committed. 

According to the testimony presented at the hearing on the motion to suppress, 

Deputy Finney observed the Defendant’s vehicle travel over the center line. Deputy

Finney stated that he did not activate his lights immediately and explained that the 

activation of his lights triggered the patrol car’s recording mechanism to preserve video 

beginning thirty seconds prior to the activation of the lights. Deputy Finney 

acknowledged that the video showed the Defendant’s tires on the line rather than over the 

line, but he testified that he observed the vehicle cross over the line prior to the events 

reflected in the recording. 

The Defendant, who was driving with his daughter and her boyfriend as 

passengers, appeared suspiciously nervous to Deputy Finney. The Defendant’s hands 

were shaking, and Deputy Finney could see the carotid artery in his neck beating. 

Deputy Finney took the Defendant’s driver’s license to the police vehicle and checked 

the validity of the Defendant’s license and the vehicle’s license plate. He testified that 

while he was at the patrol car, he could see the Defendant making furtive movements, as 

though he were either looking for something or trying to hide something. Deputy Finney

acknowledged there was a passenger in the back seat. Deputy Finney asked the 

Defendant for consent to search the vehicle, and the Defendant refused. Deputy Finney 

testified that he returned to the patrol car, began to write a citation for the driving offense,

and called for a K-9 unit. The occupants of the vehicle were removed, the dog alerted for 

the presence of drugs, and police found 3.3 grams of marijuana, 21 grams of 

methamphetamine, and 100 ecstasy tablets in the center console. 

Deputy Finney acknowledged that twenty-seven minutes elapsed between the 

beginning of the video and the arrival of the dog. The video reflects the lapse of 

approximately fifteen minutes between Deputy Finney’s return to the patrol vehicle to 

write the ticket and the arrival of the dog. He stated that his “job is not just to write a 

ticket to everyone” but “[t]o go beyond traffic stops and to find narcotics and things like 

that.” Asked if his purpose in stopping the Defendant was to find narcotics, he answered, 

“No, ma’am. But that’s the only way without violating people’s rights that is by 

conducting traffic stops, investigating, and asking them questions and things like that.” 

He denied, however, prolonging the issuance of the citation, noting that he had to write a 

narrative and copy down the vehicle information. He stated that he had not finished 

writing the citation when the K-9 unit arrived. 
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Defense counsel contended that there was no probable cause to stop the 

Defendant’s vehicle. She also specifically argued that twenty-seven minutes was “too 

long” under Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015) (holding that a 

traffic stop cannot be prolonged beyond the time reasonably necessary to complete the

purpose for which the stop was made).

1

The trial court issued a written order denying the motion. The trial court did not 

address the Defendant’s allegation that the stop was unnecessarily prolonged, but instead 

accredited the testimony of Deputy Finney that the Defendant failed to maintain his lane 

of traffic, providing reasonable suspicion for the stop. The trial court found that bringing 

the dog to sniff was permissible and that the subsequent search was supported by 

probable cause because the dog indicated that there were drugs in the vehicle. The trial 

court also concluded that the Defendant was not in custody at the time he spoke to police 

on the scene and that he had been advised of his rights when he later gave a formal 

statement. 

On March 15, 2018, the Defendant pled guilty to the charges in the indictment. 

The plea form indicated that the Defendant wished to waive his right to trial and that the 

District Attorney General would not recommend a sentence. The Defendant

simultaneously filed a document entitled “Issues Reserved for Appeal.” This document 

noted that the Defendant: 

advises the Court that the following issues are specifically reserved for 

appeal:

1. Defendant reserves the issue of whether his right to be secure 

from unreasonable searches and seizures, pursuant to Tennessee 

Constitution Article 1, Section 7, and the 4th ... Amendment of and to the 

Constitution of the United States of America, was violated when a Deputy 

Finney of the Tipton County Sheriff’s Office stopped him for the traffic 

violation of crossing the center lane of the highway in violation of 

[Tennessee Code Annotated] § 55-8-115 or § 55-8-125 and held him at that 

location, without issuing a citation as required by [Tennessee Code 

Annotated] § 55-10-207 within the period of the stop, and instead held him 

for twenty-seven (27) minutes until a canine trained to detect illegal drugs 

by scent[] was brought to the scene of the stop to conduct a search of the 

Defendant’s vehicle.

 

1 The Defendant’s written motion did not cite to any authority requiring suppression beyond the 

constitutional provisions forbidding unreasonable searches and seizures and Miranda v. Arizona, 384 U.S. 

436, 439 (1966).
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2. Whether the evidence presented at the hearing on the Motion to 

Suppress filed by the Defendant supported the extension of the time of the 

stop for additional investigation leading to the appearance of the canine 

based upon the Deputy’s testimony of the Defendant’s extreme nervousness 

and his visual observation of the Defendant making movements that 

suggested he was attempting to hide something in the vehicle, when such 

testimony is not supported by the dashcam video which shows that the 

interior of the Defendant’s vehicle was not visible from the front seat of the 

Deputy’s vehicle at the time he is checking the driver’s license of the 

Defendant.

On March 29, 2018, the uniform judgment document was filed, and the “Special 

Conditions” section of the form contained the following comment: “Issues reserved for 

appeal filed 3-15-18.” Although the form contained a box labeled “Pled Guilty -

Certified Question Findings Incorporated by Reference,” the box checked was the one 

labeled “Pled Guilty.”

The Defendant filed a notice of appeal on May 1, 2018. The State moved to 

dismiss the appeal on the basis that the question was not properly certified, and this court 

denied the motion, concluding “that the issues in this appeal should be fully briefed to 

ensure adequate review.” The State subsequently filed a brief arguing that the appeal 

should be dismissed both because the notice of appeal was not timely filed and because 

the requirements of Rule 37(b) of the Tennessee Rules of Criminal Procedure had not 

been met. The Defendant did not file a reply brief but asserted at oral argument that the 

question was properly certified. 

ANALYSIS

The State contends that this appeal must be dismissed both because the notice of 

appeal was not timely and because the question was not properly certified. The 

Defendant has not addressed the State’s argument regarding the timeliness of the notice 

of appeal. See State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) (“We 

take this opportunity to encourage litigants that the more proper and efficient practice for 

a party seeking a waiver of the timeliness of the notice of appeal is to file a motion with 

this court requesting the waiver pursuant Tennessee Rule of Appellate Procedure 4(a).”). 

We conclude that the notice of appeal was not timely and that the interest of justice does 

not demand a waiver of the timeliness requirement because the procedural requirements 

of Tennessee Rule of Criminal Procedure 37(b) have not been met. 
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The Defendant appeals under Tennessee Rule of Appellate Procedure 3(b), which 

permits a defendant to file an appeal on a plea of guilty “if the defendant entered into a 

plea agreement but explicitly reserved the right to appeal a certified question of law 

dispositive of the case pursuant to and in compliance with the requirements of Rule 

37(b)(2)(A) or (D) of the Tennessee Rules of Criminal Procedure.” The notice of appeal 

“shall be filed with the clerk of the appellate court within 30 days after the date of entry 

of the judgment appealed from.” Tenn. R. App. P. 4(a). In computing the time period, if 

the last day of the period is a Saturday, a Sunday, a statutory legal holiday, or a day on 

which the court is closed or inaccessible, the time is extended to the next day on which 

the court is open and accessible. Tenn. R. App. P. 21(a). 

The uniform judgment document in this case was filed on March 29, 2018. Thirty 

days from this date would have been April 28, 2018, a Saturday. Accordingly, the notice 

of appeal should have been filed by Monday, April 30, 2018. Instead, the notice of 

appeal was not filed until the following day, May 1, 2018. The notice was untimely. 

The requirement to file a timely notice of appeal is not jurisdictional, and this 

court may waive it “in the interest of justice.” Tenn. R. App. P. 4(a). Waiver of the 

notice requirement is not automatic, and this court bears in mind that reflexively granting 

waiver would render the timely notice requirement a “legal fiction.” Rockwell, 280 

S.W.3d at 214. “‘In determining whether waiver is appropriate, this court will consider 

the nature of the issues presented for review, the reasons for and the length of the delay in 

seeking relief, and any other relevant factors presented in the particular case.’” Id.

(quoting State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL

3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)).

We conclude that the interest of justice does not demand waiver of the notice of 

appeal because Rule 37, “the quagmire of criminal jurisprudence in Tennessee,” State v. 

Thompson, 131 S.W.3d 923, 923-24 (Tenn. Crim. App. 2003), and “a trap” for the 

unwary, State v. Danny Harold Ogle, No. E2000-00421-CCA-R3-CD, 2001 WL 38755, 

at *4 (Tenn. Crim. App. Jan. 17, 2001), has struck again. In short, in examining the 

nature of the issues present for review, it is apparent that the certified question was not 

properly preserved. 

Tennessee Rule of Criminal Procedure 37(b)(2) permits an appeal on a plea of 

guilty if:

(A) the defendant entered into a plea agreement under Rule 11(c) 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, and 

the following requirements are met:
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(i) the judgment of conviction or order reserving the certified 

question that is filed before the notice of appeal is filed contains a 

statement of the certified question of law that the defendant reserved 

for appellate review;

(ii) the question of law as stated in the judgment or order reserving 

the certified question identifies clearly the scope and limits of the 

legal issue reserved;

(iii) the judgment or order reserving the certified question reflects 

that the certified question was expressly reserved with the consent of 

the state and the trial court; and

(iv) the judgment or order reserving the certified question reflects 

that the defendant, the state, and the trial court are of the opinion that 

the certified question is dispositive of the case; or

(B) the defendant seeks review of the sentence and there was no plea 

agreement under Rule 11(c); or

(C) the errors complained of were not waived as a matter of law by the 

guilty or nolo contendere plea, or otherwise waived, and if such errors are 

apparent from the record of the earlier proceedings; or

(D) if there is no plea agreement pursuant to Rule 37(b)(2)(A), the 

defendant — with the consent of the court — explicitly reserved the right to 

appeal a certified question of law that is dispositive of the case, and the 

requirements of Rule 37(b)(2)(A)(i)-(ii) are otherwise met.

Tenn. R. Crim. P. 37(b)(2). 

We note here that the State argues that the Defendant failed to meet the 

requirements of Rule 37(b)(2)(A)(i)-(iv), including a statement in the judgment or order 

averring that the Defendant obtained the consent of the State and a statement that all 

parties agree the question is dispositive of the case. However, there is nothing in the 

record to indicate that the Defendant entered into a plea agreement under Tennessee Rule 

of Criminal Procedure 11(c) or was attempting to reserve the certified question under 

subsection (b)(2)(A). Instead, the record reflects that the Defendant pled guilty to the 

offenses as charged. See Tenn. R. Crim. P. 11(c)(1)(A)-(C). The signed agreement notes 

that the prosecutor would not recommend a sentence. 
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The Defendant did not argue that he was proceeding under Rule 37(b)(2)(D). 

Nevertheless, if the Defendant was attempting to preserve a certified question under 

Tennessee Rule of Criminal Procedure 37(b)(2)(D), rather than subsection (b)(2)(A), the 

Rule would still require him to explicitly reserve the right to appeal the question with the 

consent of the court, require the “judgment of conviction or order reserving the certified 

question” to contain a statement of the question preserved for review, and require the 

preserved question to clearly identify the scope and limits of the reserved legal question. 

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(ii), (b)(2)(D).

The Tennessee Supreme Court has rejected a standard of substantial compliance 

with the procedural requirements of the Rule. State v. Armstrong, 126 S.W.3d 908, 912 

(Tenn. 2003). Instead, the requirements are “‘explicit and unambiguous.’” Id. (quoting

State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998)); see State v. Christopher Christie, No. 

M2006-00612-CCA-R3-CD, 2007 WL 152484, at *2 (Tenn. Crim. App. Jan. 18, 2007)

(dismissing appeal because the question was not incorporated by reference and because 

the judgment did not state that the State and trial court had given consent to the 

preservation of the question or that the parties agreed the question was dispositive).

Here, even if we were to conclude that the document entitled “Issues Reserved for 

Appeal” was sufficiently incorporated into the judgment by the notation on the judgment 

form that it was “filed 3-15-18,” the record is still void of any indication that the 

Defendant obtained the consent of the court to reserve the right to appeal the issues after 

entering a guilty plea, as required by the Rule. See Tenn. R. Crim. P. 37(b)(2)(D); State 

v. Melissa A. Simmons, No. M2003-03064-CCA-R3-CD, 2005 WL 468295, at *3 (Tenn. 

Crim. App. Feb. 23, 2005) (dismissing the case because the record did not indicate that 

the question was reserved with the consent of the trial court or that the trial judge 

believed the issue was dispositive of the case). The document in question instead 

“advises the court” that the issues are being reserved. This does not comport with the 

“‘explicit and unambiguous’” requirements of Tennessee Rule of Criminal Procedure 37. 

Armstrong, 126 S.W.3d at 912 (quoting Irwin, 962 S.W.2d at 479). While the trial court 

may have given its consent to the reservation of the question at the plea hearing, the plea 

hearing transcript is not part of the record before us, and “the burden is on defendant to 

see ... that the record brought to the appellate courts contains all of the proceedings 

below that bear upon” the issues presented. State v. Preston, 759 S.W.2d 647, 650 (Tenn. 

1988).

We further note that, under Tennessee Rule of Criminal Procedure 37(b), review is 

limited to the questions which are identified in the certified question and which were 

decided by the trial court. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). 

While we disagree with the State that the Defendant failed to present his argument that 

the traffic stop was unreasonably prolonged to the trial court, the trial court nevertheless 
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did not make a ruling on this issue, perhaps because the motion to suppress limited 

argument on the issue to one phrase and did not contain any citations to legal authority

regarding a prolonged traffic stop. The failure to obtain a ruling from the trial court

precludes appellate review. See Preston, 759 S.W.2d at 650 (“[R]eview by the appellate 

courts will be limited to those [issues] passed upon by the trial judge and stated in the 

certified question, absent a constitutional requirement otherwise.”).

Our jurisdiction to hear the certified question is “predicated upon the [statutory] 

provisions for reserving a certified question of law.” State v. Jon Michael Johnson, No. 

M2014-01834-CCA-R3-CD, 2015 WL 6164009, at *5 (Tenn. Crim. App. Oct. 21, 2015). 

Failure to properly certify a dispositive question of law results in dismissal. Preston, 759 

S.W.2d at 650. Because we would in any event be unable to review the certified 

questions presented for failure to follow the statutory procedural requirements, we 

conclude that the interest of justice does not demand waiver of the untimely notice of 

appeal. 

CONCLUSION

Based on the foregoing, the appeal is dismissed. 

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE