# FILED February 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706- CC-00210 ) Appellee, ) ) ) SEVIER COUNTY VS. ) ) HON . BEN W. HO OPE R, II JOSEPH PENDERGRASS, ) JUDGE ) Appe llant. ) (Certifi ed Questions)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF SEVIER COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : EDWARD C. MILLER JOHN KNOX WALKUP Public Defender Attorney Generaland Reporter Fourth Judicial Dist rict P.O. Box 416 MICH AEL J . FAHE Y, II Dandridge, TN 37725 Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243-0490 AL SCHMUTZER, JR. Distri ct Attor ney General MIKE GA LLEGOS Assistant Distri ct Attor ney General Sevier County Courthouse Seviervi lle, TN 37862
OPINION FILED ________________________ APPEAL DISMI SSED DAVID H. WELLES , JUD GE-2- 

# OPINION

This appea l attempts to prese nt certifie d que stions of law p ursua nt to R ule 3(b) of the Tennessee Rules of Appellate Procedure and R ule 37(b)(2 ) of the Tennesse e Rules of Criminal Procedure. The certi fied questions prima rily involv e the legali ty of a st op of a mo tor vehicle and a s ubseque nt search an d seizure resulti ng therefr

om. Because we conclude t hat this matter is not properly before us, we dism iss this a ppea l.

In April of

1996, a Pigeon Forge, Tennessee police of ficer st opp ed the Defe ndan t’s vehicle because he thought the vehicl e’s w indows viol ated the motor vehicle window tint ing law. The Defendant was drivi ng and the off icer determined thatthe Defendant’s driver’s license was revoked and th at the Defendant was an habitual motor vehicle offender. A search of the ve hicle re sulted in the seizure of about a pound of

marijuana.

The Defendant was indi cted for pos session of mari juana with intent

to sell and for operat ing a motor vehi cle in vi olation of the Motor Vehicle Hab itual Offen der’s Act. T he De fenda nt filed a motio n to dis miss the m otor ve hicle habitual offend er’s ind ictme nt on th e bas is that it fa iled to a llege a culpa ble mental state. He filed a moti on to suppress al l evidence obtained asa resu lt of the stop, al leging t hat both the stop and the resultant search were illegal. The trialcourt o verrule d the D efend ant’s m otio ns. Imm ediately thereafter, the Defendant entere d an “o pen p lea” to e ach c ount o f the ind ictme nt “exp ressly reservi ng the right

to appeal t he certif ied questi ons raised i n the Motions-3-

Hearin g.” The trial judge entertaine d the gu ilty pleas from t he Defendant on the record an d then stat ed, “Okay. We willthen deal wi th this matter on Apri l 25, 1997.” The judge neith er announced nor entered a judg ment of con viction or a senten ce.
Appr oxi ma tely two months later an order was enter ed overrul ing the Defe ndan t’s motions, accept ing the Defendant ’s pleas of guilty and allowi ng the Defendant ’s appealof the f ollowi ng certified qu estion s of law: 1. Whethe r the stop and subseq uent arrest of the defendantwas unlawful and therefor e whether themarijuana found in the search of

the defenda nt’s car should h ave been suppressed. 2. Wh ether, if the s top and arrest of the d efendant we re lawful, were th e sea rch an d seizu re of the mariju ana none theless unlawful and therefor

e should the m arijuana hav e been suppressed. 3. Whether the indi ctment in t hi s case should have been dismissed for fai ling to include t he culpable mentalstate of “knowin g.”
The Defendant fi led a notice of appe al from this order. T he record contains no judg ment o f conviction or sente ncing ord er.

The Defen dant ha s attem pted to reserve hi s certif ied questions pur suant to Rule 37(b)(2)of the Tennessee Rules of Criminal Procedure, which pr ovides that: An appeal li es "from any order or j udgment in a cri minal proceedi ng where the law pr

ovides for

such appeal, and f rom any judgment of con victi on : (2) [ u]pon a plea of guilty or nolo contendere i f: (i ) defendantentered int o a plea agreement under Rule 11(e) but explicitly reserved wi th the consent of the state and of the cour t the right to appeal a certi fied quest ion of l aw that is disposit ive of t he case; (iv) Defendant expl icitly reserved wi th the consent of the court the right to appeal a certified question o f law that is dispositive of the case. Tenn. R . Crim. P. 37(b)(2 )(i) & (iv).-4- Our sup remecourt has also prescribed guidel ines that must be adhered to in order to per

fect an appeal by Rule 37(b)(2)(i) and (iv). 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 he ld:

This is an app ropriate time for this Court to make explici t to the bench and bar exa ctly what the appe llate courts will hereafter requ ire as prerequisi tes to theconsiderat ion ofthe merits of a questi on of law certif ied pursuant to Tenn. R. Crim. P. 37 (b)(2)(i) or (iv). Regardless of what has appeared in prior peti tions, orders, colloquy in o pen court or otherwise, the finalorder or judgment from whi ch the time beg ins to run to purs ue a T.R.A.P. 3 appealmust contain a statement of t he dispositive certif ied question of law reserved by defend ant for ap pellate review and the questi on of law must be st ated so as to c learly identify the scope and the li mits of t he l eg al issue re served. For example, wher e qu estions of

law involve the val idity of searches and t he admiss ibility of state men ts and confe ssion s, etc., th e reas ons re lie d upon by defendant

in the t rial cour

t at the s uppression hearing must be identif ied in the state ment of the cer tifi ed question of

law and review by the appellat e cou rt s will be limited to those passed u pon by the tr ial judge and state d in the ce rtified ques ti on, absent a consti tutional re quirementotherwise . With out an e xplicit statem ent of the c ertifi e d question, neither t he defendant, the State nor the tri al judge can make a meaningful determination of whetherthe issue sought to be revi ewed is disposit ive of t he cas e . Most of the reported and unreported cases seeking the l imited appel late rev iew pursuant t o Tenn. R. Crim. P. 37 have been dismissed bec ause t he certif ied questi on was not disposit ive. Also, the or der must stat e that the certif ied questi on was expre ssly reserved aspart of a plea agreement, that the State and the trialjudge consented t o the reserv

ation and t hat the State and the tri al judge are of t he op ini on t hattheques ti on i s di spos it iveof t he ca se. Of course, the burden is on defendant to see that

these prerequi sites are in the final order and th at the reco rd broug ht to the ap pellate co urts containsall of

the proceedi ngs below that be ar upon whether the certif ied ques tion of la w i s disposit ive and the meri ts of the question certif ied. No issue beyond t he scope of the cer tifi ed question wi ll be conside red. Pendergrass , 9 37 S.W.2d at 836-37 (ci ting Preston , 759 S.W.2d at 650) (emp hasis added). The Defendant bears the burden of “reser ving, ar ticulating, and identifying the issu e.” Pendergrass , 937 S.W.2d at 838.-5- In the present case, it is clear from the reco rd that the D efenda nt, with the agreeme n t of the State and the tri al court, attempted to reserve cer tifi ed questions concerning the val idity of the stop, the search, and the indictme nt. It i s equally cle ar, howe ver, that Preston , Pendergrass , and Rule 37 of th e Tennessee R ules o f Criminal Procedure have not been foll owed. There is no final order or j udgment in the record from which th e time begins to run to pursue
a T.R.A.P. 3 appeal . The questions of law setforth i n the order entered by the trialcourt are not

stated so as to clearly identif y the scope and t he limits of the legal issues reser

ved. The reasons r

elied upon by the Defendant in the t rial court at the suppressi on hearing are not identif ied in t he statement of the certi fied question of law. There is no judgment of convict ion. Obviously, at the ti me of the appe al, the Defendant had bee n nei ther convi cted nor sent enced, so the und erlyi ng issues attempted to be presented on appeal are not neces saril y dispositive of the cas e.

Given the clear, m andato ry langua ge of Preston and Pendergrass , we must conclude that

this appealis notprope rly before us. Accordingly, we dismiss the appeal of t he c ertif ied questi ons and remand the case to the tri al court f or such further

proceedings as may be appr opriate.

____________________________________ DAVID H. WELLES , JUD GE-6-

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE