# FILED
March 17, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL 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. Clem ent, Jr., Judge ALTON B. APPLEGATE, * (DUI) Appellant. *

For Appellant : For Appellee : Justin Johnson, Attorney Charles W. Burson Suite 205 Attorney General and Repor ter 2131 Murfreesboro Road Nashville, TN 37217 Daryl J. Brand Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Bernard McEvoy Assistant District A

ttorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649

OPINION FILED:__________________________

APPEAL DISMISSED; JUDGM ENT OF TRIAL COURT AFFIRM ED

GARY R. WADE, JUDGE2 OPINION The defendant, Alton B. Applegate, w as indicted by the Dav

idson 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 whic h was suspended except for forty-fiv e days. The defendant was prohi bited from driving for two years and requ ired to perform one hundred hours of publ ic service, enter an alcohol treatment program, an d 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 interpret

ed in State v. Preston , 759 S.W.2d 647 (Tenn. 1988), and as confirmed in State v. Pendergrass , 937 S.W.2d 834 (Te nn. 1996), we must dismiss the appeal.
On May 23, 1995, Metro Pol ice Department Officers John Tanker sley 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 attem pted to stop all of the vehicles to determine "if they were local." C itations were issued for drivers who pass ed through the closed roadway in viol ation of the restriction.

The defendant was stopped as he attempted to pass through the signage at approximate ly 6:15 P.M. Officer Tankers ley flagged down the defendant, asked for his license, and smel led alcohol when questi oning him as to his use of the road. The defendant was charged with DUI.

Prior to trial, the defendant filed a motion to sup press evidence of his3 intoxication on the basis that there was no probable cause for his arrest. The tr ial court ruled that the stop w as, in fact, based on probable caus e 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 guil ty 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 Cri minal Appeals, pursuant to Tennessee Rul e 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 incl uded 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 cour t entered an order providing as follows: This cause came on to be heard on Mar ch 14, 1996 at which time the defendant enter ed into a plea agreement with the Assi stant 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 reser

ved as part of the plea agreement, and the Assistant District Attorney General and the Tri al 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/s eizure/arrest of the defendant ... and whether this ev

idence should be suppressed."
The stat e now subm its that t he defe ndant f ailed to p roperly pre serve the certified question of law. We must agree. In Preston , 759 S.W.2d at 650, our supreme court established pr erequisites to any c

onsideration of a certified ques tion4 of law: Regardless of what has appeared in prior petitions,

orders, colloquy i n open court or otherwis e, the final order of judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal must cont ain a statement of the dispositive certi

fied question of law reser ved by defendant for appellate review and the question of law must be stated so as to clearl y identify the scope and the limits of the legal issue reserved. For example, where questions of law inv

olve 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 th e appellate courts will

be limited to those passed upon by the trial judge .... Al so, the order must state that the certified question was

expressly reser

ved as a part of the plea agreemen t, that the Sta te and the trial ju dge consented to the reservati on and that the State and the trial judge are of the opinion that the question is dispositive of the case ... . No issue beyond the sco pe of that certified question w ill be considered. (Emphasis added).

In this case, the judgment form doe s 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. T hese circumstances are indistinguishable from those in Pendergrass . In that case, the judgment ent ered made no reference to a certified que stion of law. The subsequent notice of appeal referred to "'Rule 37.'" Id. at 835. A week after the fili ng of the notice of appeal, the trial court entered an ord er "purporting to note the appeal of a certified question of law." Id. The Court of Criminal Appeals found the late entered order consti tuted "substantial compliance." Id. at 836. Our supreme court di sagreed and dismissed the appeal: As a general rule, a tr ial court's judgment beco mes final thirty days after it

s entry unless a timely

notice of appeal or a specified post-trial motion is filed. The jurisdi ction of the Court of Criminal Appeals attaches upon the filing of the notice of appeal and, therefore, the t rial court loses jurisdiction. Once the trial court loses jurisdiction, it5 generally has no pow

er to amend its judgment . Indeed, it is wel l-sett led that

a judgm ent bey

ond the j urisdi ction of

a court is void.... The att empt at compliance was too l ate, as the trial court lost jurisdiction ... w hen the defendant filed the notice of appeal. Id. at 837-38 (emphasis added)(citations omitted).

Accordingly, the appeal must be dismissed and the judg ment of the trial court must be affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ Curwood Witt, Judge