FILED

March 17, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9608-CR-00370

Appellee, * DAVIDSON COUNTY

VS. * Hon. Frank G. Clement, Jr., Judge

ALTON B. APPLEGATE, * (DUI)

Appellant. *

For Appellant: For Appellee:

Justin Johnson, Attorney Charles W. Burson 

Suite 205 Attorney General and Reporter

2131 Murfreesboro Road

Nashville, TN 37217 Daryl J. Brand

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

Bernard McEvoy

Assistant District Attorney General

Washington Square, Suite 500

222 Second Avenue North 

Nashville, TN 37201-1649 

OPINION FILED:__________________________

APPEAL DISMISSED; JUDGMENT OF TRIAL COURT AFFIRMED

GARY R. WADE, JUDGE
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OPINION

The defendant, Alton B. Applegate, was indicted by the Davidson

County Grand Jury for driving under the influence of an intoxicant, third offense. 

Thereafter, the defendant pled guilty to DUI, second offense. The trial court

imposed a sentence of eleven months and twenty-nine days in jail, all of which was

suspended except for forty-five days. The defendant was prohibited from driving for

two years and required to perform one hundred hours of public service, enter an

alcohol treatment program, and submit to other conditions. The defendant

attempted to reserve a certified question of law for appeal. See Tenn. R. Crim. P.

37(b)(2). Because he failed to comply with the mandatory requirements of Rule

37(b)(2), as interpreted in State v. Preston, 759 S.W.2d 647 (Tenn. 1988), and as

confirmed in State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996), we must dismiss

the appeal. 

On May 23, 1995, Metro Police Department Officers John Tankersley

and Harold Taylor established a roadblock to control traffic on a closed portion of

Smith Springs Road. Signs on a barricade indicated that the road was closed to all

but local traffic. The officers attempted to stop all of the vehicles to determine "if

they were local." Citations were issued for drivers who passed through the closed

roadway in violation of the restriction. 

The defendant was stopped as he attempted to pass through the

signage at approximately 6:15 P.M. Officer Tankersley flagged down the defendant,

asked for his license, and smelled alcohol when questioning him as to his use of the 

road. The defendant was charged with DUI. 

Prior to trial, the defendant filed a motion to suppress evidence of his
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intoxication on the basis that there was no probable cause for his arrest. The trial

court ruled that the stop was, in fact, based on probable cause and ruled the

evidence admissible. Defense counsel then remarked that "it may be for a point of

certifying the issue for appeal." 

Sometime later, on March 14, 1996, the trial court entered a judgment

accepting the defendant's guilty plea to DUI, second offense; the form provides that

the "case [is] pending appeal." On April 11, 1996, the defendant filed a notice of

appeal that contained the following language:

[The defendant] appeals to the Court of Criminal

Appeals, pursuant to Tennessee Rule of Criminal

Procedure 37(b)(2)(i), the certified question of law ... that

was agreed to with the consent of the State and the

Court and that was included in the Defendant's plea

bargain agreement accepted by the Court on March 14,

1996.

Seven days after the filing of the notice, the trial court entered an order

providing as follows:

This cause came on to be heard on March 14,

1996 at which time the defendant entered into a plea

agreement with the Assistant District Attorney, pursuant

to Tennessee Rule of Criminal Procedure 37(b)(2)(i)

reserving a question of law for appeal.

The certified question was expressly reserved as

part of the plea agreement, and the Assistant District

Attorney General and the Trial Judge consented to the

reserved issue and are of the opinion that the question is

dispositive of the case.

The certified question is stated as follows:

"Whether the statements given by the defendant and the

subsequent evidence obtained therefrom was the

product of an illegal stop/seizure/arrest of the defendant

... and whether this evidence should be suppressed."

The state now submits that the defendant failed to properly preserve

the certified question of law. We must agree. In Preston, 759 S.W.2d at 650, our

supreme court established prerequisites to any consideration of a certified question
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of law:

Regardless of what has appeared in prior petitions,

orders, colloquy in open court or otherwise, the final

order of 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 .... Also, the order must state that the

certified question was expressly reserved as a 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 .... No issue beyond the scope of

that certified question will be considered.

(Emphasis added).

In this case, the judgment form does not comply with the requirements

of Preston. The order entered a week after the notice of appeal is insufficient to

cure the defect. Pendergrass, 937 S.W.2d at 834. These circumstances are

indistinguishable from those in Pendergrass. In that case, the judgment entered

made no reference to a certified question of law. The subsequent notice of appeal

referred to "'Rule 37.'" Id. at 835. A week after the filing of the notice of appeal, the

trial court entered an order "purporting to note the appeal of a certified question of

law." Id. The Court of Criminal Appeals found the late entered order constituted

"substantial compliance." Id. at 836. Our supreme court disagreed and dismissed

the appeal:

As a general rule, a trial court's judgment becomes final

thirty days after its entry unless a timely notice of appeal

or a specified post-trial motion is filed. The jurisdiction of

the Court of Criminal Appeals attaches upon the filing of

the notice of appeal and, therefore, the trial court loses

jurisdiction. Once the trial court loses jurisdiction, it
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generally has no power to amend its judgment. Indeed, it

is well-settled that a judgment beyond the jurisdiction of a

court is void.... The attempt at compliance was too late,

as the trial court lost jurisdiction ... when the defendant

filed the notice of appeal.

Id. at 837-38 (emphasis added)(citations omitted).

Accordingly, the appeal must be dismissed and the judgment of the

trial court must be affirmed. 

________________________________

Gary R. Wade, Judge 

CONCUR:

_____________________________

Thomas T. Woodall, Judge

_____________________________

Curwood Witt, Judge