### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J uly 16, 2003
STATE OF TENN ESSEE v. JAMES H. THOMP SON Direct Appeal from the Circuit Court for F ranklin County

No. 13906 J. Curtis Smith, Judge

No. M2002-02137-CCA-R3-CD - F iled October 13, 2003

Following a conviction for DUI, t hird offe nse, after entering a g uilty plea, Defe

ndant James H. Thompson appeals , asserting that he has presented a certif ied quest ion of law for review. Be cause we co nc lu de th at th e q ue st io n o f l aw , e ve n i f p ro pe rl y re se rv ed at th e g ui lt y plea hearing, is not dispositive of the case, we dismiss the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. Robert S. Peters, Winchester, Tennessee, for the appellant, James H. Thompson. Paul G. Summers, Attorney Gene ral andReporter; Helena Walton Yarbrough; Assistant Attorney Genera l; James Michael Taylor, District Attorne y Gener al; Steven M. Blount, Assistant District Attorney Gene

ral, for the appellee, the State of Tennessee

. OPINION
The procedural history

of this ca se follow s a

circuitous path which ends at the quagmire of criminal jurisprud

ence in Tennessee – the inappropriate utilizationof Tenn. R. Crim. P. 37(b)(2)(i), appeal from a guilty

plea, reserving a cer

tified question of law. As pertinent to this case, Defendant was indicted by the Fr

anklin County Grand Jury for the offense of DUI , third offense. Su bs eq ue nt ly, Defend an tfiled a “Motion to Dismiss Indictment for Prosecution of Second or Subsequent Offender.” Extremely important to the dispositionof this appeal, the motion, as designated, asked only that prosecution of Defendant “as a sec ond or subsequent offender be dismissed and that the defendant

be prosecuted only as a first offender .” [Emphasis added]. In this motion, Defendant argued that he was entitled to the requested relief because the State f ailed to provide him with a copy of the D epartment of Safety printout o f his prior

DUI convicti ons at his a

rraig nment, in contravention of the requirement of Tenn. Code Ann. § 55-10-403(g )(3)(ii). In an orde r entered August 30, 2001, the trial court denied the motion.-2-

On February

8, 2002, a “Plea of Guilty a nd Acknowledgment and Waiver of Rights” wa s filed in the trial court. The doc um ent ref lec ts th at D efe nda nt was agr eei ng t o pl ead gui lt y to D UI, third offense, without any agreement as to sentencing. The guilty plea document was signed by Defendant, his counsel, the prosecutor, and the trial judg e. The pre-sentence “investigation repor t” was filed with the trial court on A pri l 1 9, 2 002 . In that document, the case’s status was represented as an “open plea of guilty to DUI , third offense,” witha sentencing hearing se t for April 29, 2002. A judgment of conviction was filed in this case on April2 9, 2002. The ju dgm ent ref lec ts th at D efe nda nt ent ere d a g ui lt y ple a to th e ch arg e of DUI, third offense, on February 8, 2002. He was fined $1,100.00, and was sentenced to ser ve eleven months and twen

ty- nine day s, with all

but 220 days suspended, an d his driving privileges were revoked for three y ears. There is no mention of reservation of a c ertified question of law for appeal in the judgment. While the fine and the period of revocation of driving privileg es are the statutory minimums for DUI , third of fense, t he perio d of inca

rcera tion prior to imp osit ion of a suspended sentence is 100 days in excess of the minimum for a DUI , third off ens e conviction. Added to the judgment is a provision that Defend ant’s re

port date to jail wa s stay

ed until May 30, 2002, “to see if [a] proper motion for [n]ew [t]rial is filed.”
On May 24, 2002, Def

endant filed a “Motion for New Trial or for Reduction of Sentence.” The motion did n ot make a ny r efere nce to re servatio n of a ce rtified q uestion of law in an a

ppeal. The ground s for the

motion wer

e that (1 ) sentencing De

fendant as a multipleDUI offender

was inappropriate because the State failed to comply with § 55-10-403( g)(3)(ii), and (2) imposition of a sentence including incarcera tion for a period in excess of the statutory minimum is not consistent withthe statutory principles of se ntencing. Defendant’s reque sted r elie f was for the trial court to grant a new trial, or reduce or modify his sentence

. On July 1 8, 2002, a

n “Amend

ed Judgme

nt” was file d in this case. It was signe d by the trial court, Defendant’s counsel, and the prosecutor, but not by Defendant. The Amended Judgment states in p ertinen

t part:
The judgment entered in this cause on April 29, 2002, should be amended in order for

the defendant to be allowed to appeal pursuant to the Ten

n. R. Crim. P. Rule 37 and, accordingly , the f oll owing language is added to the judgment which wa s entere d April 29, 2002, and is as follo ws: The defendant entered

a plea of guilty as set fo rth in the judg ment in this case as a result of a plea agreement entered into under Rule 11(e) and the defendant expres sl y reser

ved with the consent of the State and of the Court the right to appeal a certified question of law that is dispositive of the sentencing judgment in this case in respect to the defendant being a 3 rd DUI offender

. The question o f law is r

eserve d in the jud

gment a nd th e scope and limits of the legal issue are re served in that the defendant was sentenced as a 3 rd offender followin g the denia

l of the de

fendant ’s motion to

dismiss the

indictmen

t f o r-3-

prosecution of a

second or subsequent offender under the pr ovisions of

T.C.A. § 55-10-403(g)(3)(2) [sic] by reason of the fact that the defendant was not given a copy of the De

partmen t of Safe ty p rintout at the t ime of arraignment, thereby precluding the State from prosecuting the de fendant as a 3 rd offender.
It is thereby ORDEREDthat the judgment of conviction be so amended to contain t

he lang uage s et forth

herein, that this amendment be made a part of the judgment entered in this cause; that the certified q uestion is expressly reserved withthe consent of the State; and that the trial judge and D istrict Attorney General, as evidenced by

their signatures below, concur and ag ree that, as to the conviction of the defendant as a 3 rd offender, this certified question is dispositive.

On July 25, 2002, the trial court entere d an or der overruling the motion for new trial. A notice of appeal was filed on August 1 4, 2002. I

n his brie f on appe al, Defend ant asse rts, throu gh his counsel, that the is sue on ap peal is presented as a certified question of law pursua nt to a guilty plea withan agreemen

t to reser ve the ce rtified q uestion f or appea l. The ce rtified q uestion pu

rported ly rese rved for app eal is set forth in the “Amended Judgment” quoted above. I n his appellate brief, Defendant’s requested relief from this Court is for the “judgment of the trial court [to] be reversed, [and] that the c ase be r

emanded to [the] tria

l court fo r furthe r proce edings c onsistent with [this] Court’s opinion, and that the [D]efendant have general relief .”
Defendant’s certified question of law is not dispositive of the case as is required for an appeal pursuant to Tenn. R. Crim. P. 37(b)(2)(i). The original motion filed by Defendant contested the State’s r ight to pr

osecute him as a mul

tiple DUI offende r, but acknowledg ed that the State c ould proceed to prosec ute him for a DUI, albe

it not as a multiple offender. This Court is not bound by the determination and agreement of the tria l court, a defenda nt, and the

Statethat a certified question of law is dispositive of the case. See State v. Oliver , 30 S.W.3d 36 3, 364 (Te nn. Crim. App. 2000). “‘An issue is dispositive when this courtmus t either a ffirm the judgmen t or reve rse and d ismiss. An issue is never dispositive when we might reverse a nd remand. . . .’” Id . (quo ting State v. Wilkes , 684 S.W.2d 663, 6 67 (Tenn . Crim. App. 1984). If we g ranted Defendant the relief he r equests, and the only relief h e would be

entitled t o if he is co

rrect, (and, incidentally, the only relief authorized in the certified question of law), then we could only reverse the trial co urt and rem and for a new sentenc in g hearin g for a co nvict ion o f DUI, fir st off ense. Dism issal of the under lying char ge s o f DUI (whatever number

of prior offenses) would not be appropriate. The refore, the appeal

must be dismissed. Oliver , 30 S.W.3d at 364. Furthermore, we quest

ion whether the pu

rported certi fied qu estion of

law was p

roperly reserved at the time of the guilty ple a. We have set for th the procedu

ral histor y f rom docum

ents included in what is c ommonly refer red to as the “tec

hnical r ecord.” There a re no tra nscripts of

any trial court pr

oceedin gs inclu ded in

the record on appeal. The first mention of an appe al of a certified question of law is mentioned in the “Amended Judgment.” All documents filed prior t o the “Amended

Judgment”in dic ate that D efenda nt knowingly a

nd volunta

rily entere d a guilt

y pl ea to-4-

DUI , third of

fense, without a

negotia ted agr eement a s to sente

ncing, withthe trial

court to im

pose a sentence. Implicit in Rule 37(b)(2)(i) is the require ment that at the time the guilty plea is entered , the State, the defendant, and the trial court must all clearly understand that the guilty plea is entered reserving the right to appeal a certified question of law. If transcripts of proceedings in the trial court had been inc luded in the recor d, this might be c lear on a ppeal. H owever , we do not have to determine whether the question of law was properly reserved since we

have determined

that it is not dispositive of this case.
Even though w e are dismissing this appeal for procedural reasons, in the eve nt of further review, we will brief

ly a ddress the merits of the issue presented. The identical issue was addre ssed by this Court in State v. Gary K. Haddon , 2002 Tenn. Crim. App. LEXI S 485, No. M2001-02286- CCA-R3-CD

(Tenn. Crim. App., at Nashville, June 5, 2002), perm to app. denied , Nov. 12, 2002). Defendant

acknowl edges that cas e, and ur ges thisC ourt to revie w its prior holding a

nd overr ule Haddon

. In Haddon , the defendant was charged with DUI , second offense. He asserted that the State didnot provide him with a copy of the D epartment of Safet y pr intout of h

is prior co nviction a

t his arraig nment, as required by

Tenn. Code Ann. § 55-10-403(g)(3)(ii). Th e trial cou rt granted the defendant’s motion to dismiss his prosecution of DUI, second offense, and ordered the prosecution to procee d for DUI , first of fense. T he State appealed, and this Court reversed the order of the trial court and remanded the case for pr osecution of DUI, second of fense.
Tenn. Cod

e Ann. § 55 -10-403( g)(3) providesas follow s: (i) Notwi thst andin g any

oth er rule of evidence or law to the contra ry, in the prosecution of second or subsequent offenders under this cha p ter th e official driver record maintained by

the department

and produced upon a certified computer printout shall constitute prima facie evidence of the prior c onviction. (ii) Following indictment by a grand jury , the defendant shall be given a copy of the department of safety printout at the time of arraignment

. If the charg e is by warran t, the defen dant is entitled to a copy of the de partment printout at the defendant’s first app earanc e incourt or at least f ourteen (14) day s prior to

a trial on the mer

its. (iii) Upon m otion properly made in writing alleging that one (1) or more prior conv ictions are in error and setting forth the e rror, the court may

require that a certified co py o f the judgment of conviction of such offense be provide d for inspection by t

he court as to its va

lidity prior to th

e depar tm en t printout being introduced into evidence. Tenn. Code Ann. § 55-10-403(g)(3) (Supp. 2002) (e mphasis added).-5-

In the case sub judice , Defendant argues that the word “shall” in Tenn. Code Ann. § 55-10- 403(g) (3)(ii) is “mandatory”and not “directory ,” and as such, the f ailure o f the State

to comply requires a reduction in his indictedoffense from DUI , third of

fense, t o DUI , first of

fense. T he State argues that “shall” is “directory ” only, and as suc h, dismissal of the multiple offender count of the indictment is not appropriate.
We reiterate what this Court held in Haddon in order to make it clear as to the relief which is notappropr

iate whe n the State

fails to provide a copy

of the Department of Safety printoutof a prior conviction(s) in a multiple offender DUI case: Regar dless of whether

the requirement of Tennessee Code Annotated section 55- 10-403(g )(3)(ii ) is “mandatory,”or “d ire ctory,” we conclude that the trial court erred by dismissing that

portion of the indictmen

t which ch argesDefend ant with being a DUI second off

ender. No provision in the law justifies dismissal – the relief request ed by Defend ant and g

rante d by the

trial court – and Defendant requested no other relief in the motion.
* * * We conclude that dismissal of the portion of the indictment charging Defendant as a DUI

second offender was not an appropria te remedy f

or the State’s failure to provide Defendant, at his arra ignment, with a computer printout of the Department of Safety official driver record of Def endant.
Haddon , 2002 Tenn. Crim. App. LEXI S 485, at *4 and *9. Finally, we note

again, there is no transcript of the trial cour t proceedings regar

ding Defend ant’s moti on. If the app eal did no t have to b e dismisse d, we would still be r equired to affirm t he judg ment of the

trial cou rt. I t is the app ellant’sresponsi bility to provide

an adeq uate record for review on appea l. See Tenn. R. App. P. 24. Without a transcript of the hearing, we are required to presume that the trial court’s de termination of the issue was correct. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).
CONCLUSION For the reasons stated herein, this appeal is dismissed. Costs are taxed ag ainst the Defendant.

___________________________________ THOMAS T. WOODALL , JUDGE