FILED

February 23, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

(Heard at Kingsport)

FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: February 23, 1998

)

Appellee, ) Hon. Rex Henry Ogle,

) Judge

Vs. )

) BLOUNT COUNTY

DOUGLAS BRIAN IRWIN, )

) Supreme Court

Appellant. ) No. 03-S01-9702-CC-00021

)

APPELLANT FOR APPELLEE:

Gerald C. Russell John Knox Walkup

125 E. Broadway Attorney General & Reporter

Maryville, Tennessee

Michael E. Moore

Solicitor General

Kathy M. Yacuzzo

Assistant Attorney General

425 Fifth Avenue, North

Nashville, Tennessee

Michael Flynn

District Attorney General

5th Judicial District

Maryville, Tennessee 

Edward P. Bailey

Assistant District Attorney General 

Maryville, Tennessee

O P I N I O N

AFFIRMED. DROWOTA, J. 
1Rule 37(b)(2)(I), Tenn. R. Crim. P., provides in pertinent part as follows:

(b) An appeal lies from any order or judgment in a criminal

proceeding where the law provides for such appeal, and from any

judg me nt of c onvic tion: (2 ) Upo n a ple a of g uilty or n olo

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 rig ht to a ppeal a ce rtified ques tion of law th at is

dispositive of the ca se. . . .

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On June 7, 1993, the defendant was charged in a one count

indictment with contributing to the delinquency of a minor in violation of Tenn.

Code Ann. § 37-1-156 (1996 Repl. & Supp. 1997) as follows:

DOUGLAS BRIAN IRWIN, on the 18th day of December 1992, in

Blount County, Tennessee, and before the finding of this indictment,

did unlawfully contribute to the delinquency of [S.A.], a child under

18 years of age, by engaging in sexual intercourse with said child, all

of which is against the peace and dignity of the State of Tennessee.

On September 28, 1993, the defendant moved to dismiss the indictment “because

it does not charge a crime.” The next day, the defendant withdrew the motion to

dismiss and on December 14, 1993, entered a plea of guilty under the indictment. 

The defendant attempted to reserve for appellate review pursuant to Tenn. R.

Crim. P. 37(b)(2)(I),1 the following question: “Would the act of this sexual

intercourse constitute the offense of contributing to the delinquency of a minor

under this indictment, number C7302?”

The trial court accepted the defendant’s guilty plea, but did not sentence

the defendant on the conviction. Indeed, no order was entered reflecting the trial

court’s acceptance of the plea agreement and the purported certified question of

law until the case was pending on appeal in the Court of Criminal Appeals. On

August 10, 1994, the trial court, with the permission of the Court of Criminal

Appeals, then filed an “Amended Order Accepting Plea of Guilty.” In that order,
2

The defendant was sentenced to eleven months and twenty-nine days, all of which was

ordered to be served on supervised probation, ordered to perform three hundred hours of

community service, ordered to participate in sex counseling, and ordered to refrain from contacting

the vic tim o r her f am ily.

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the certified question was set out and the trial court stated that a sentence would

be imposed after the intermediate court rendered its decision. However, the Court

of Criminal Appeals did not reach the merits of the certified question, but

concluded instead that it had no jurisdiction because no final judgment of

conviction had been entered since the trial court had neither ruled upon the merits

of the purported certified question, nor imposed a sentence on the conviction. 

Accordingly, the appeal was dismissed.

The case went back to the trial court for sentencing, and on July 11, 1995,

the trial court entered a judgment imposing sentence for the defendant’s

conviction.2 The final judgment of conviction entered by the trial court did not

purport to set forth a certified question for review. Nonetheless, the defendant

sought to appeal to the Court of Criminal Appeals, and for statement of the

certified question, relied upon the August 10, 1994, order entered by the trial

judge which the Court of Criminal Appeals previously had held to be insufficient as

a final judgment of conviction.

This time, the Court of Criminal Appeals affirmed the judgment of the trial

court, noting that, unlike the allegation in the defendant’s withdrawn motion to

dismiss the indictment, the question purportedly certified for appeal did not assert

that the indictment failed to state a criminal offense. Instead, the certified

question asked the court to decide if the defendant is guilty of contributing to the
3

 Ora l argu me nts w ere h eard in this c ase on Novem ber 2 1, 1997 in K ingsport a s part of this

Court’s S .C.A.L.E.S. (Supreme Court Advancing Legal Education for Students ) project.

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delinquency of a minor based upon the facts stipulated by the parties. Quoting

from its prior decision, the intermediate court concluded that the stipulated facts

were inadequate to permit review, and further held that the defendant had waived

any complaint regarding the sufficiency of the indictment by withdrawing his

motion to dismiss.

Thereafter, we granted the defendant permission to appeal and, after

carefully reviewing the record, now conclude that the defendant failed to properly

reserve a certified question of law in accordance with Rule 37, Tenn. R. Crim. P. 

Accordingly, we affirm the judgment of the Court of Criminal Appeals. 3

CERTIFICATION

Rule 37(b)(2)(i), Tenn. R. Crim. P., provides in pertinent part as follows:

(b) 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) Upon 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. . . .

In State v. Preston, 759 S.W2.d 647 (Tenn. 1988), this Court explained the

requirements of Rule 37(b) as follows:

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

question was expressly reserved as part of the plea agreement, that

the State and the 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.

Id., 759 S.W.2d at 650 (emphasis added); see also State v. Pendergrass, 937

S.W.2d 834 (Tenn. 1996).

Contrary to the explicit and unambiguous requirements of Preston, the final

judgment in this case, entered on July 11, 1995, from which the time for filing an

appeal pursuant to Rule 3, Tenn. R. App. P., began to run, makes no reference at

all to a reservation of a dispositive question of law for appellate review. Moreover,

this judgment does not refer to, nor incorporate, any other independent document

which would satisfy the requirements of Preston.

Relying upon the trial court’s order of August 10, 1994, the defendant

argues that the question has been properly reserved for review. We point out

that, in the first appeal of this case, the Court of Criminal Appeals held that order

insufficient to qualify as a final judgment. Moreover, since that time, we have

specifically held that an order entered by a trial court after the filing of the notice of

appeal in the Court of Criminal Appeals is not effective to remedy noncompliance

with Rule 37, Tenn. R. App. P., because the trial court no longer has jurisdiction. 

Pendergrass, 937 S.W.2d at 837-38. The August 10, 1994, order in this case falls
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squarely within that rule. Accordingly, the defendant may not rely upon that order

to establish compliance with Rule 37 and Preston.

CONCLUSION

After carefully reviewing the record, we have determined that the defendant

failed to properly reserve the right to appeal a certified question of law in

accordance with the requirements of Rule 37, Tenn. R. Crim. P. Accordingly, the

decision of the Court of Criminal Appeals upholding the trial court’s judgment

finding the defendant guilty of contributing to the delinquency of a minor and

imposing a sentence thereon is affirmed. 

_____________________________________

FRANK F. DROWOTA, III

Justice

Concur:

Anderson, C.J.

Reid, Holder, JJ.

Birch, J - Not Participating.