IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 19, 2001 Session

STATE OF TENNESSEE v. SIGIFREDO RUIZ

Direct Appeal from the Circuit Court for Williamson County

No. I-700-227 Donald P. Harris, Judge

No. M2000-03221-CCA-R3-CD - Filed October 17, 2001

A Williamson County grand jury indicted the defendant on one count of possession of not less than

ten pounds, one gram of marijuana nor more than seventy pounds of marijuana with intent to sell or

deliver. Through counsel the defendant filed a motion to suppress any evidence or statements

resulting from the allegedly unconstitutional search of the defendant’s vehicle. When the motion

to suppress was denied, the defendant waived his right to a trial by jury and pled guilty as charged.

For this offense the trial court sentenced the defendant as a Range I, standard offender to two years,

which would be suspended after the service of one hundred days, day for day; placed him on

supervised probation for a period of four years; and fined him five thousand dollars. According to

the Negotiated Plea Agreement form, there was also an agreement with the State that the defendant

would later submit a certified question of law to this Court. Through this appeal the defendant asks

us to consider two search related issues. However, the State asserts that the defendant did not

properly reserve the certified questions, and, thus, this Court lacks jurisdiction to consider them.

Finding the State’s position has merit, we, therefore, dismiss this appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Dismissed.

JERRY L. SMITH,J., delivered the opinion of the court, in which GARY R. WADE, P.J. and DAVID G.

HAYES, J., joined.

Mario Ramos, Nashville, Tennessee, for appellant, Sigifredo Ruiz.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Ron

Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney, for appellee, State

of Tennessee.
1

 Because we find the jurisdictional issue raised by the State determinative, we limit our factual presentation

to only the procedural aspects of the case.

2

 During the plea submission hearing, defense counsel even asked a question concerning the procedure for

reserving the c ertified questio ns because of his unfamiliarity with th is type of app eal.

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OPINION

Factual Background1

The defendant faced D felony possession of marijuana charges stemming from the search

of his pick-up truck. As aforementioned, the defendant pled guilty to the charged offense and

received a two year sentence to be suspended after the service of one hundred days, day for day; four

years on supervised probation; and a five thousand dollar fine. The videotapes of the defendant’s

guilty plea submission hearing and of his sentencing hearing unquestionably reflect his intent to seek

appellate review of a certified question.2 Furthermore, the technical record supports this intent.

Prior to entering his plea, the defendant signed a form entitled “Negotiated Plea Agreement.” Also

written on the form is the following statement: “Will submit certified question to Court Criminal

Appeal [sic] in a separate order.” In keeping with that statement, the record presented includes an

agreed order submitting for review to this Court whether “the stop and search [was] constitutional

under the 4th Amendment” and whether “the use of the canine [was] constitutional under the 4th

Amendment.” Since this was an agreed order, the State at the trial court level obviously offered no

opposition. Nevertheless, at the appellate level the State filed a motion to dismiss contending that

this Court lacked jurisdiction because the alleged certified questions were not properly reserved.

This Court denied the motion, ordering the State “to file an appellate brief . . . includ[ing] a response

to the [defendant’s] contention that his guilty plea should be vacated.” Within its brief the State

again argued that this Court did not have jurisdiction to consider the matters raised by the defendant.

After reviewing the State’s threshold issue, we find it to have merit and, therefore, dismiss the

defendant’s appeal. 

Alleged Improper Reservation of a Certified Question of Law

Under the Tennessee Rules of Criminal Procedure, a defendant pleading guilty may reserve

for appeal a certified question of law dispositive of his or her case. Tenn. R. Crim P. 37(b)(2)(i),

(iv). In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), the Tennessee Supreme Court set out the

required steps to successfully preserve this type of appeal. Id. at 650. The Preston Court stated:

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 [the] 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

.... Without an explicit statement of the certified question, neither the defendant, the
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State[,] nor the trial judge can make a meaningful determination of whether the issue

sought to be reviewed is dispositive of the case . . .. Also, the order must state that

the certified question was expressly reserved as part of the 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 [the] defendant to see that these prerequisites are in the final order.... 

Id.

Approximately eight years later, our supreme court quoted this language with approval in

State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996). During Pendergrass’ plea, reference

was clearly made to his reservation of a certified question of law. Id. at 835. Nevertheless, the

judgment subsequently entered on January 15, 1993, contained no mention of a reservation of the

right to appeal a dispositive certified question of law. Id. On February 12, 1993, “the defendant

filed a notice of appeal ‘pursuant to Rule 37,’” and one week later “the trial court entered an order,

purporting to note the appeal of a certified question of law.” Id. However, the supreme court

dismissed the appeal. Id. at 838.

In support of its dismissal, the Pendergrass court cited the defendant’s failure to comply with

Preston, which resulted in the appellate court’s lack of jurisdiction. Id. at 837-38. The supreme

court observed, for example, that the judgments did not reference the reservation of a certified

question; that the judgments did not contain a statement indicating that the certified question would

be dispositive of the case; that the judgments did “not refer to or incorporate any other independent

document which would satisfy the Preston requirements,” etc. Id. at 837. Furthermore, the supreme

court observed that the trial court had lost jurisdiction upon the defendant’s filing of his notice of

appeal. Id. at 837-38. Along this line the Pendergrass Court agreed with the State’s portrayal of the

February 19th order as “an attempt to confer jurisdiction on the Court of Criminal Appeals to hear

and determine a Preston appeal where no jurisdiction existed because of noncompliance with Rule

37.” Id. at 837. The supreme court further found that even if these matters had not precluded review,

the order did not clearly identify “the scope and limits of the legal issue reserved.” Id. at 838.

Turning to the case presently before this Court, we find the rationale of Pendergrass

controlling because of numerousfactual similarities. For example, the defendant in the instant appeal

made reference within his plea agreement form to reserving a certified question of law. However,

no mention was made of this in the judgment entered on December 4, 2000. On December 11, 2000,

the defendant filed his notice of appeal and on the same day mailed to the assistant district attorney

handling the defendant’s case a copy of the aforementioned agreed order outlining the certified

questions. The record reflects that the Williamson County Circuit Court Clerk’s Office received the

agreed order on the 12th, and the trial judge signed the order on the 13th. As in Pendergrass, the order

containing the certified questions was entered after the defendant had filed his notice of appeal;

therefore, the trial court no longer had jurisdiction to cure the flaws in the appeal. Furthermore, the

agreed order includes no statement that the certified questions listed are dispositive of the case. We
3

 In Pendergrass, our supreme court provided guidance regarding the detail needed to preserve certified

questions. Pendergrass, 937 S.W .2d at 650 . The supr eme cou rt stated: 

For example, where qu estions of law inv olve the valid ity of searches an d the admissibility of

statements and confessions, etc., the reasons relied upon by [the] 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 c ourts will be limited to those passed upon by the trial judge and stated in the certified

question, absent a constitutional requirement otherwise.

Id. 

4

 The court also observed that Ogle’s supplemental order was filed thirty days after the entry of the jud gment,

which had, the refore, bec ome final. Ogle, 2000 WL 38755, at *3.

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also note that the questions listed lack the requisite limitation of the issues presented.3 See e.g., State

v. Randall L. Cheek, No. M2000-00203-CCA-R3-CD, 2000 WL 1838584, at *4 (Tenn. Crim. App.

at Nashville, Dec. 14, 2000).

Our decision is further informed by the more recent case of State v. Danny Harold Ogle, No.

E2000-00421-CCA-R3-CD, 2001 WL 38755 (Tenn. Crim. App. at Knoxville, Jan. 17, 2001,

permission to appeal denied, June 4, 2001). At the time of Ogle’s plea, all parties involved were

aware that he intended to reserve a certified question for appeal. Id. at *1. Both his plea agreement

form and the transcript of his plea submission reflected this. Id. Nevertheless, the judgment entered

on January 14, 2000 does not include the question though it does state: “CERTIFIED QUESTION

OF LAW RESERVED FOR APPEAL (SEE SUPPLEMENTAL ORDER).” Id. On February 17,

2000, the trial judge signed and the trial clerk entered the referenced supplemental order. Id.

However, the defendant had filed his notice of appeal one week previously. Id. Among other

considerations, the court ruled that the trial court’s supplemental order was “a nullity”4 and could

not cure the Preston defects that prevented this Court from acquiring jurisdiction. Id. at *2-3. To

further support its determination, the court provided numerous cases affirming “that the Preston

requirements are jurisdictional.” Id. at * 3.

In sum, through Preston in 1998, our supreme court outlined the procedure to be followed

to preserve a certified question for appeal. Preston, 759 S.W.2d at 650. It emphatically re-affirmed

this procedure in Pendergrass. Pendergrass, 937 S.W.2d at 836-37. Thus, presented with the facts

of the instant case, this Court must conclude that the defendant has not complied with Preston and

that we are, therefore, precluded from considering the matters raised by the defendant.

The question then remains as to the proper disposition of this appeal in view of our

conclusion that we do not have jurisdiction to consider this appeal. This Court has entered

inconsistent opinions with respect to this issue. In State v. Ogle 2001 WL 38755, at *3, a panel of

this Court declined to go ahead and vacate the guilty plea and simply dismissed the appeal. The

panel found that a post-conviction petition was the proper vehicle for determining whether the

defendant’s guilty pleas were involuntary or the product of ineffective assistance of counsel because

they were premised on the belief that his certified question would be decided on the merits. Id.

In State v. Cheek, 2000 WL 1838584, at *4-5, another panel of this Court, after finding an

improper reservation of a certified question and thus a lack of jurisdiction, nevertheless went ahead

and vacated the guilty plea as being involuntary because it was based on a belief that the certified

question would be considered.
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Having reviewed the opinions in both Ogle and Cheek, we have concluded that the better

procedure is to simply dismiss the appeal. Because the reasons a defendant pleads guilty may be

varied, it is not necessarily the case that the inducement to pled guilty is the ability to have a certified

question considered on appeal. The defendant may have pled guilty even without the certified

question. Such questions are better answered at an evidentiary hearing in a post-conviction

proceeding. We therefore adopt Ogle as providing the proper disposition of appeals under the

circumstances presented by the instant case. That portion of the opinion in Cheek indicating the

appropriate disposition in such cases is the vacation of the guilty plea by the appellate court is hereby

expressly overruled. 

Conclusion

For the foregoing reasons, we find that the State’s issue has merit. Accordingly, the

defendant’s appeal is DISMISSED.

___________________________________ 

JERRY L. SMITH, JUDGE