### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 16, 2001 Se ssion
STATE OF TENN ESSEE v. JERRY D AMON WILLIAMS
Appeal from the Circuit Court for Rutherford County No. M48803 James K. Clayton, Jr., Judge

No. M2000-02592-CCA-R3-CD - F iled December 13, 2001

On Septem

ber 25, 2 000, the D efenda nt, Jerry Damon Willia

ms, enter ed a plea of guilt y to driving under the influe

nce of a lc ohol in violation of Tennessee Code Annotated section 55-10-401. Pursuant to Rule 37 (b)(1 )(i) of the Tennessee Rules of Criminal Procedure, the Def endant sought to reserve a certified question of law to be r eviewed b y this Court. I n this appeal, the Defendant
con tends that (1) h

e proper ly r eserve d the cer

tified que stion of the

validity of the pol

ice’s in itia l investigatory

stop and (2) the trial court erred in deny ing his motion to suppress evidence discovered as a result of the investigatory stop. We vacate the Defendant’s conviction and dismiss the case.

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

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J ERRY L. S MITH , JJ., joined.

Allen D. H ale, Mur

freesb oro, Ten

nessee, for the a

ppellant , Jerry

Damon Willia

ms.
Paul G. Summers , Attorney Genera l and Repo

rter; Eli zabeth T. R

ya n, Assista nt Attorne

y General ; and William C. Whitesell, Jr., District Attorney General, for the appellee , State of Tennessee.
OPINION

On November 5, 1999, the Defendant exited a Taco Bell and enter ed his vehicle. Another
car passed quickly throug

h the parking lot, almost hitting the Defendant’s vehicle. The Defendant stepped out of his vehicle and engag ed in a short conversation with the occupants of the other car. Th e D ef en da nt th en re tu rn ed to hi s c ar an d d ro ve aw ay.
Officer Gibson of the Smyrna

Police Department observed the Defendant y elling at the other vehicle and dec ided to inv estiga

te. Offi cer Gibs on pulled into the Taco Bell parking lot and stopped the other vehicle. After speaking with the occupa nts of the other car, Officer Gibson rea lized that-2-

the Defendant had not remained in the parking lot, and radi oed a descri ption of the Defendant’s vehicle to his dispa

tch offic er. Off

icer Gib son testi fied that he di d not witness any illega l or suspiciou s activity

on the par

t of the De

fendant

. Corporal Luca s, also of the Smy rna Polic e Depar

tment, he ard the r

adio dispatch describing the Defendant’s vehicle and observed a car fitting that description. Based sol ely on the radio dispatch, Corporal Lucas stopped the ve hicle. Corporal Luca s testifie d that he d id not witness the Defendant

violate any traf

fic laws and executed the stop based solely on the radio dispatch. Corporal Lucas approached the vehicle a nd noticed the smell of alcohol. After a field sobriety test, the Defendant was arrested for dr iving under the influence.

On Sep tember 2 6, 2000, the Defe ndant ent ered int o a plea a

greem ent with th

e State conditioned upon a reservation of a certified question of law. That same day

the trial court entered its Jud gmen t sentencing the Defendant to eleven months and twe nty-nine day s at seventy-f ive percen t, fined the Defendant $600.00, and revoked his drive r’s lice nse for t wo y ears. The Judgment made no mention of the certified question of law. On October 20, 2000, an Agreed Order Amending the Judgment was entered which detailed the Defe nda nt’s reser

vation of the certified question of law. The Defendant filed a Notice of Appe al on October 23, 2000.
CERTIFI

ED QUESTION The Statecontends that the D efenda nt’s cer tified que stion reg arding

the valid ity o f the tra

ffic stop is not prop erly

before this Court b ecause

the Defe ndant did not comply

with the mandates of Statev. Preston , 759 S.W.2d 647 (Tenn. 1 988), an d, therefore, w e have n o jurisdic tion to add ress the appeal or vacate the Defe ndant’s conviction.

Tennessee Rule of

Criminal Procedure 37(b) provides that an appeal lies 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 reserve d with the consent of the state an d of the c ourt the r ight to a ppeal a certified question of law that is dispositive of the case; or

. . . (iv) Defend ant explici

tly reserved with the c onsent of

the cour t the rig ht to appe al a certified question of law that is dispositive of the case.

In Preston , our supreme court set forth the following prerequisites for appellate review of a ce rtified question pursuant to Rule 37: Regar dless of what h as appea

red in prior pe titions, orders, colloquy in open c ourt or otherwise, the final order or judgmen t from whi ch the time

begins t o 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 a nd the question of

law must be stated
so as to cle arly

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 a plea-3-

agree ment, that the Sta

te and the trial judg e consen

ted to the reservation and

that the Stateand the trial 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 ar e in the final order and that the reco rd br ought to the appellate courts contains all of the procee dings below that

bear upon whether the

certified question of law is dispositive and the merits of the questions certified. No issue beyond the scope of the certified question will be considered.

Preston , 759 S.W.2d at

650; see also State v. Pe

nderg rass , 937 S.W.2d 834, 836-37 (Tenn. 1996); State v. I rwin , 962 S.W.2d 477, 478-79 (Tenn. 1998).

In the present case, the trial court entered a Judgment on September 26, 2000 that made no mention of a certified question of law. Attempting to correct that oversight, on October 20, 2000, within the thirty day s before the Judgment became final and before a notice of appeal was filed, the trial court entered an Agreed Order Ame

nding the Judgment. The Agreed Or der was signed by

the Defend ant’s att

orney , the Assis tant Distr ict Attorn ey and the tr

ial judg e and re ad as follows: As evidenced by

signatures of counsel below , the Judgment e ntered in this cause on the 26 th day

of Septem

ber, 200 0 is here

by a mended to

state as f ollows:

1. Upon h is plea of

guilty, Def

endant explicitly reserved with the consent of the State in the trial Cour

t, the right to appeal a certified question of law w hich will be dispositive of this matter.

2. The certified question of law for review is “w hether or not the trial court erred in failing to suppre ss evidence gathered pursua nt to a traffic stop of

Defend ant’s ve

hicle conducted

by the Smyrna

Police Department in the absence of reasona ble suspicion to make such traffic stop. 3. All other aspects of the original Judgment remain the same.

The State contends that the Judgment does not reflect that a certified question of law that is dispositive of

the case has been reserved. How ever, in amending the September 26 Judgment, the trial court by its order pla ced the amending languag e of the October 20 Order in the body of th e original Judgment. The Judgment cannot be read without incorporating the la nguage of the October 20 Order. Therefore, we must re spectfully disag ree with the State’s contention.

The State compares this case to Penderg rass and asserts t

hat the tr ial cour t’s attem pt to rectify the error after the Judgment was entered did not reserve the certified question. However, we believe this case is f

undament ally differe nt from Penderg

rass
. In Penderg

rass , our supr

emecourt dismissed the appe al beca

use the cer

tified que stion of la

w was not p

roperly reserv ed under

the requ irements of Rule 37 and Preston

. Pendergra ss , 937 S .W. 2d at 837-38. The supreme court’s holding was basedon the fact that the notice of appeal was filed and jurisdiction vested in the Court of Criminal Appealsbefore

the judg ment was s upposedly amended to include the certified question of law. Id.-4-

The trial court in Penderg

rass had no authority to amend the judg ment because it lacked jurisdiction. Id. That is not so in the present case.

The State also

argue s that the o

rder am ending the judg ment of c onviction is void, noting that the order does not constitute an amended judgment. We a cknow ledge that Tennessee Supreme Court Rule 17 prescribes the judgment of conviction form that cour ts are re quir ed to use in Tennessee. Obvious ly , the orde

r amending the ju dgment in this cas e does no t comply with the r

ule. I n this respec t, we belie

ve that a n amendme

nt to a judg

ment of conviction should more appropriately be made on a Rule 1 7 form de signated as an am ended jud

gme nt with all o f the particulars of the conviction and sente

nce set forth therein. However, we do not believe that a court’s judg ment of conviction that does not utilize the required form is void. Thus, the order amending the judgment is effective.

As a g en er al ru le , a tr ia l c ou rt ’s ju dg me nt be co me s f in al th ir ty d ays after

its entry unless a timely notice of appeal or a

specified post-tri al motion isfiled. See Penderg rass , 937 S.W.2d at 837; Tenn. R. App. P.4 ( a), (c) . Once a judgmen t become s fin al or a t imely notice of appe al has been filed, the trial court loses jurisdiction over the matter. Penderg

rass , 937 S.W.2d at 837. After a trial court loses jurisdiction, it gene rally has no power to amend its judgment. See id. ; State v. Moore , 814 S.W.2d 381, 382 (Tenn. Crim. A pp. 1991) . A ju dgment b ey ond the jur isdiction o f a cour

t is void. See Penderg

rass , 937 S.W.2d at 837. In the present case, the Judgment of the trial court had not becom

e final, and the tr

ial cour t theref ore ret ained jur isdiction t o amend it

. Though the Judgment

was prop erly

amended , the Judgm

ent as am ended mus tcomply

with the requirements of Preston . In order to comply with Preston , the J udgm ent must co ntain a clear statement of the cer tified que stion, a sta

tement tha

t all part ies agr ee that th e questio n is dispositive of the case, and a statement that all parties agreed to the reser vation of the certified question. See Preston , 759 S.W.2d at 650. It is clear from the recor d that the Judgment as amended m eets th e requirements of Preston , and the c ertifie d question is theref ore prop erly

before this Court.
REASONABLE SU SPICION FOR TRA FFIC

STOP By certifi ed questi on of law , the Def endant c onte nds that Corporal Lucas did not have a
reasona ble suspicion

to s top the Defendant’s vehicle on November 5, 1999; there fore, the stop violated the Defendant’s right to be free from unreaso nable se archesand seizur es under the Four th Amendment

to the United States Constitution and Article I section 7 of the Tennessee Constitution. The Defendant argues that all evide nce obtained as a result of the stop should therefore be suppressed. Stopping an automobile and detaining its occupants constitute a “sei zu re” within the meaning of the federal constitution and the Tennessee constitution. See State v. Binion , 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994) ( citing Delawa re v. Prou se , 440 U.S. 648, 653 (1 979)). In State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992), our supreme court applied Terry v. Ohio , 392 U.S. 1 (1968), and set forth the standards to g uide a determination of the constitutionality of a n investigatory

stop of an automobile. Our supreme court held that-5-

[a] police officer may

make an investigatory

stop of a motor vehicle when the officer has a reaso nable sus picion, su pported b y sp ecific a

nd articulable

facts, that a criminal offense has been or is about to be c om mi tt ed. In determining whether a police officer’s reasonable suspicion is supported by specific and articulable facts, a cour t must consider the totality of the c ircumstances. This includes, but is not limited to, objective observations, information obtained from other police office

rs or ag encies, information obtained

from citi zens, and the pa

ttern of o peratio n of cer

tain offe nders. A court mus talso consider the rational inferences and deductions that a trained police office r may draw fr om the fa cts and c ircumsta

nces kno wn to him.

Watkins , 827 S.W.2d at 294 (citation omitted).

In the present case, neither Officer Gibson nor Corporal L ucas was able to articulate any fact that they observe d that would support a reasonable suspicion that a crime had been or w as about to be committed. Both Officers testified that the Defendant behaved completely within the bounds of the law while

under the ir obser vation. O fficer

Gibson obs erved th

e Defe ndant y elling a t a vehic le in a parking lot, but could articulate no other suspicious activity. Corporal L ucas stated that he relied completely on Off

icer Gibson’s dispatchin pulling the Defendant over to the side of the road, and further stated that he wou ld not have stopped the Defendant were it not for Off icer Gibson’s dispatch.

In the Order De

nying Motion to Suppress, the trial judg e relied on two facts to support hi s denial of the Mot

ion to Suppr

ess the evidence

obtained as a res ult of the t

raffic stop. First, the trial judge stated that Officer

Gibson believed the Defendant left the scene of a confrontation when the officer “initiated his lights,” and the dispatch issued was justified. Second, the trial court stated that “while Offi cer L

ucaswas in the

proc ess o f stop

ping Mr. Wi l liams’ vehicle, he was under the impression that Mr. Williams might pos sibly be dri ving und er the in fluence .” Neithe

r of thes e findi ngs are supported by

the record. Both officers testified that the Defe ndant ope rated hi s vehicle within the bounds of the law while they observed him. Officer Gibson stated that the Defenda nt left “the scene of an investigation.” Corporal L ucas testified that he would not have stopped the Defendant, but for the dispatch. Theref ore, we find that no reason able susp icions exist ed to allow Corporal Luc as to stop th e Defendant’s vehicle. The investiga tory stop was in violation of the Defendant’s Fourth Amendment rights as well as his rights pursuant to Article I section 7 of the Tennessee Constitution. All evidence obtained as a result of the illega l stop must be suppressed.
CONCLUSION Ac co rd in gl y, for the foregoing re asons , we fin d that the Defendant properly reserved a certified question of

law conc erning

the trial court’sdenial of

his Motion to

Suppress and that the trial court erred in denyingsaid motion. The Defendant’s conviction is vacated and the cha rges against the Defendant are dismissed.-6- ___________________________________ DAVID H. WEL

LES, JUDGE