FILED

February 3, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00210

)

Appellee, )

)

) SEVIER COUNTY

VS. )

) HON. BEN W. HOOPER, II

JOSEPH PENDERGRASS, ) JUDGE

)

Appellant. ) (Certified Questions)

ON APPEAL 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 General and Reporter

Fourth Judicial District

P.O. Box 416 MICHAEL J. FAHEY, II

Dandridge, TN 37725 Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243-0490

AL SCHMUTZER, JR.

District Attorney General

MIKE GALLEGOS

Assistant District Attorney General

Sevier County Courthouse

Sevierville, TN 37862

OPINION FILED ________________________

APPEAL DISMISSED

DAVID H. WELLES, JUDGE
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OPINION

This appeal attempts to present certified questions 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 questions primarily involve

the legality of a stop of a motor vehicle and a subsequent search and seizure

resulting therefrom. Because we conclude that this matter is not properly before

us, we dismiss this appeal.

In April of 1996, a Pigeon Forge, Tennessee police officer stopped the

Defendant’s vehicle because he thought the vehicle’s windows violated the motor

vehicle window tinting law. The Defendant was driving and the officer determined

that the Defendant’s driver’s license was revoked and that the Defendant was an

habitual motor vehicle offender. A search of the vehicle resulted in the seizure

of about a pound of marijuana.

The Defendant was indicted for possession of marijuana with intent to sell

and for operating a motor vehicle in violation of the Motor Vehicle Habitual

Offender’s Act. The Defendant filed a motion to dismiss the motor vehicle

habitual offender’s indictment on the basis that it failed to allege a culpable

mental state. He filed a motion to suppress all evidence obtained as a result of

the stop, alleging that both the stop and the resultant search were illegal. The

trial court overruled the Defendant’s motions. Immediately thereafter, the

Defendant entered an “open plea” to each count of the indictment “expressly

reserving the right to appeal the certified questions raised in the Motions
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Hearing.” The trial judge entertained the guilty pleas from the Defendant on the

record and then stated, “Okay. We will then deal with this matter on April 25,

1997.” The judge neither announced nor entered a judgment of conviction or a

sentence. 

Approximately two months later an order was entered overruling the

Defendant’s motions, accepting the Defendant’s pleas of guilty and allowing the

Defendant’s appeal of the following certified questions of law:

1. Whether the stop and subsequent arrest of the

defendant was unlawful and therefore whether the marijuana found

in the search of the defendant’s car should have been suppressed.

2. Whether, if the stop and arrest of the defendant were

lawful, were the search and seizure of the marijuana nonetheless

unlawful and therefore should the marijuana have been suppressed.

3. Whether the indictment in this case should have been

dismissed for failing to include the culpable mental state of

“knowing.”

The Defendant filed a notice of appeal from this order. The record contains

no judgment of conviction or sentencing order. 

The Defendant has attempted to reserve his certified questions pursuant

to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure, which provides

that: 

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) [u]pon 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; (iv) Defendant explicitly reserved with the consent of the court

the right to appeal a certified question of law that is dispositive of the

case.

Tenn. R. Crim. P. 37(b)(2)(i) & (iv).
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Our supreme court has also prescribed guidelines that must be adhered

to in order to perfect 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 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, 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 agreement, 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)

(emphasis added). The Defendant bears the burden of “reserving, articulating,

and identifying the issue.” Pendergrass, 937 S.W.2d at 838.
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In the present case, it is clear from the record that the Defendant, with the

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

questions concerning the validity of the stop, the search, and the indictment. It

is equally clear, however, that Preston, Pendergrass, and Rule 37 of the

Tennessee Rules of Criminal Procedure have not been followed. There is no

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

a T.R.A.P. 3 appeal. The questions of law set forth in the order entered by the

trial court are not stated so as to clearly identify the scope and the limits of the

legal issues reserved. The reasons relied upon by the Defendant in the trial court

at the suppression hearing are not identified in the statement of the certified

question of law. There is no judgment of conviction. Obviously, at the time of the

appeal, the Defendant had been neither convicted nor sentenced, so the

underlying issues attempted to be presented on appeal are not necessarily

dispositive of the case. 

Given the clear, mandatory language of Preston and Pendergrass, we

must conclude that this appeal is not properly before us. Accordingly, we dismiss

the appeal of the certified questions and remand the case to the trial court for

such further proceedings as may be appropriate.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE