### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Novem ber 19, 200 2 Session
STATE OF TENNESSEE v. CARLOS E. BRYAN Direct Appeal from the Circuit Court for Williamson County No. II-1000-308 Timothy L. Easter, Judge

No. M2001-02705-CCA-R3-CD - F iled December 11, 2002

This is yet another c ase in which the parties have been ensnar ed in the procedural pitfalls of a certified question of law. Defendant entered a ne gotiated plea of g uilty to possess ion of ove

r sevent y poun ds of ma

rijuana with intent to sell or deliver with an agreed sente nce of eight y

ears. He attempted to reserve a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(iv), “with the consen t of the court,” relating to the search a nd seizure of the contraband. Becau se the defendant entered a neg otiated plea of guilty and neither the judgment nor the order of the court reflects the state’s consent to the cer tified question, we must dismiss the appeal. Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
J OE G. R IL EY , J., delivere d the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.
Peter J. Strianse, Nashville, Tennessee, and Kimbe rly S. Hodde, Madison, Tenne ssee, for the appellant, Carlos E. Bry an.
Paul G. Summers, Attorney Gene ral and Reporter ; Elizabeth T. Ry an, Assist

ant Attor ney Genera l; Ronald L. Da vis, Distr ict Attorn

ey Genera l; and Der

ek K. Smit

h, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION
The Williamson County

Grand Jury

returne d an in dictment charg ing the d efenda nt with posse ssion of over seventy pounds of marijuana with the intent to sell or deliver as a resul t of th e seizure of drug s found in t he defe ndant’s a utomobile. The def

endant e ntered a negotia ted ple a of guilty to the offe nse in ex ch an ge fo r a n a gr ee d e ig ht -ye ar se nt en ce an d a tt em pt ed to ce rt if y a dispositive question of law for appeal. The writ ten documentation relating to the guilty plea specific ally

states tha

t the neg otiated p lea of g uilty was entere d “pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(iv) reser ving a dispositive question of law for appeal.” The judgment-2-

of conviction specifically

states that the plea

was entered “pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(iv) reserving a dispositive question o f law for

appeal. ” A sepa

rate order entered on the same date as the judgment of conviction states that “the De fendant, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(iv), explicitly reserves with the consent of this Court

the right to appeal a certified question of law that is dispositive of the case. . . . ” (Emphasis added). None of the docum

ents reflects that the state also consented to the right to appe al the certified question of law.
The state contends that this court does not have jurisdiction to entertain the app eal . It contends a certified question of law pursuant to a

negotiated plea of guilty

with an agreed sentence also requires the consent of the state under subsection (i) of Tennessee Rule of Criminal Procedure 37(b)(2) and may not be c ertified pursuant to subsection (iv), the latter of which only requires the consent of the court. We must agree with the state.
Reservation of a

certified question of law with a plea agreement is controlled by Tennessee Rule of Criminal Procedure 37(b)(2)(i), which allows an appeal when

“the def endant e ntered i nto a plea ag reemen t under Rule 11(e) but explicit ly res erved with the consent of the state and of the
cour t the rig ht to appea

l a certi fied que stion of la w that is di spositive o f the ca se. . . .” (Emphasi s added). Instead, the defenda nt at tem pted to re serve the certif ied quest ion of law

pursuant to subsection (iv), which allows an appeal when “the def endant explicitly reserved with the consent of the court the right to appeal a certified question of law that is dispositive of the case. . . except the judgment o r document need not reflect the state’s consent to the appe al or the state’s opinion that the question is dispositive.” (Emphasis added).
Subsection (iv) “allows the defendant to appeal a ce rtified question of law without the consent of the district attorney

. This provision would only apply where there was no plea agreement and the defe

ndant ple d to the ch arge with the court imposing sente nce.” Co mmittee Co mme nt, Tenn. R. Crim. P. 37 (emphasis added). It further appe ars to the court that there is a ratio nal basis for requiring the sta

te’s con sent toa

certifi ed questi on of law

entere d pursuan

t to a plea agree ment. In such a situation, the state agrees with the defendant to take a position with regard to the sentence; thus, req uiring t he state ’s conse

nt to the c ertifie d question of law is l ogical

. The defendant contends that his guilty plea was entered

pursuant to Tennessee Rule of Criminal Procedu

re 11(e )(1)(B ) with

the ei ght-year se ntenc e bein g a non-binding recommendation by the state. Ourreview o f the gu ilty plea hea ring, a s well as t

he guilt y pl ea docu

ment, cle arly r eveals that the eight-y ear sentence was an ag reed sentence entered pursua nt to Rule 11(e )(1)(C) , which the defendant could have withdrawn if the court

rejecte d the rec ommendat

ion. Reg ardless , it would appear that a guilty

plea under either subsection 1(B) or 1(C) r equires the consent of

both the state and the court on the certified question of law. See Tenn. R. Cr im. P. 37(b)(2)( i) (encompassing any

“plea agreement under

Rule 11(e)”).
Failure to proper

ly r eserve a certi fied que st ion of law will result in the dismissal of the appeal. State v. Pe

nderg rass , 937 S.W.2d 834, 838 (Tenn. 1996); State v. Preston , 759 S.W.2d 647,-3-

650 (Tenn. 1988). If the trial court’s judgment or order does not expressly r eflect the proper consent to the certified question, the question i s not properly ce rtified. See Preston , 759 S.W.2d at 650. Here, the part

i es f ailed to properly c ertify the que stion of law, thus requiring the dismissal of the appeal.
We are not u

nsympathe tic to the defendant’s plight. All parties knew the guilty plea was basedupon the certified question of law. The state voiced no

objectio n to the certified question of law at the time the defendant entered his conditional plea of g uilty . Never

theless, our state

supreme court has been unwaver ing in requiring

the dismiss al of ap peals when the question of law is not properl y certified. See Penderg

rass , 937 S.W.2d a

t 837-38; State v. D anny

Harold O gle , No. E2000- 00421-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 31 (Tenn. Crim. App. J an. 17, 2 001, at Knoxville), perm. app. denied (Tenn. June 11, 2001) (Court of Criminal Appeals di smissing t h e appeal but s uggesti ng the re-exam ination of the strict requirements of Preston , with the s upreme court denying

permission to appeal). Accordingly , the appeal is dismissed.

JOE G. RILEY, JUDGE