### IN THE SUPREME COURT OF TENNESS EE AT JACKSON Novem ber 14, 200 2 Session
STATE OF TENNESSEE v. MICHAEL ARMSTRONG
Appeal by P

ermis sion from

the Court

of Crimi nal Appeals Criminal Court for Shelby County No. 00-00933 John P. Colton, Judge

No. W2001-01300-SC-R11-CD - Filed Fe bruary 5, 2003

We granted this appeal to determine whether a trial court’s entry

of an order of

correction filed after the entry of the fin al judgm

ent satisf ied the r equirem ents f or the def

endant to appeal a certified question of law pu

rsuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure . The Court of Crimina

l Appealsconcluded that neither the order nor the final judg

ment met th

e requir ements for appealing a certified question of law se t forth in Statev. Preston , 759 S.W.2d 647 (Tenn. 1988), and dismissed the appeal. After reviewing t he record, we conclude that the trial cour t’s order of correctionunder Rule 36 of the Tennessee Rules of Criminal Procedure was entered while the trial court had jurisdiction before the filing of a notice o f appeal and therefore complied with the prerequisites for raising a certified question of law on appeal under

the circumstances of this case. Ac co rd in gl y, we reverse the judgment and remand for the

Court of Criminal Appeals to address the merits of the appeal. Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Crim inal Appeals Revers ed and Rem

anded to the

Court of Cr

iminal App eals

E. R IL EY A NDERSON , J., delivered the opinion of the court, in which FRANK F. D ROWOT A , III, C.J., and A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined.

A. C. Wha

rton, Jr., Shelby

Count y P ublic Defe nder ; W. Mark War

d, Assista nt Shelby County Public Defender; William W. Hea ton and D eborah B randon, Memphis, T ennesse e, for the appell ant, Micha el Arm stron g.
Paul G. Summers , Attorney Gene ral and Reporter; Michael E. Moore, Solicitor Genera l; Braden H. Boucek, As sistan t Attorne y General ; William L . Gibbons, District A ttorney Genera l; and Stev e Hall, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

.

OPINION1 See Tenn. Cod e Ann. § 55-1-616 (19 98).

2 Miranda v. Arizona , 384 U.S. 436 (1966).

3 The stat ed iss ue was “[w]he ther the tria l judge erred in refusing to suppress [the defendant’ s] incri minating statem ents given to M emp his Po lice office rs on A pril 20 , 199 9, in wh ich the d efend ant ad mitted driving an auto mob ile because said s tate ments wer e taken in vi olati on of th e Fift h Amendment priv ileg e agains t sel f-i ncrimi nat ion , the requ ireme nts of Miranda v. Arizona , and w ere inv olunta ry in viola tion of the [Fou rteenth ] Am end men t.”
-2- Background

The defendant, Michael Armstrong, was indicted on February 3, 2000, by t

he Shelby County GrandJury for t

he offens e of operating a motor vehicle af ter having been found a habitual motor vehicle offender. 1 The defendant thereafter filed a motion in t

he trial c ourt see

king to su ppress hi s oral statement of admission of driving a motor vehicl e that he had made to a police officer. The motion allege d that the

admission w as made d

uring a custodia l interrog ation by the police off icer in the absence of Miranda 2 warnings. The trial court conducted a hearing

on the motio n to suppre ss and found that the defendant was not in custody when the oral admission was made and therefore Miranda warnings were not required. Ac cordingly , the court denied the motion.

Sometime

l ater, th e defendant neg otiated a plea ag reemen t whereb y he

pleaded nolo contendereto the offense in return for a one-y ear su spended sentence and one y ear of probation conditioned on reserving the right to appea l a certified question of

law on the trial court’s ruling on the motion t

o suppres s. The tra

nscript o f the gu

ilty plea hea ring on M ay

22, 2001, c learly

reflec ts that the trial court, the State and the defendant agr eed that the plea of nolo contender e wa s conditioned on reserving the appeal of a c ertified question of law, and that theissue was dispositive of the case.

Un fo rt un at el y, t he neg otia ted plea agreement forms conta in no reference to the certified question of law. I

n addition , on May

22, 2001, t

he trial c ourt e ntered a

st andardized form final judgment that stated the terms of the plea but did not contain the certified question of law or mention the defendant’s intent to pursue an appeal of a c e rtifi ed question of law. On the contrary , the standardized form final judgment waived any

appeal. The trial judge, on the same day , however, agreed to appoint

the public

defender to perfect the appe al of the certified question of law. Twoda ys later, on Ma y 24, 2 001, the trial court entered an “Order A llowing Appeal After Guilty Plea on Certified Question of Law.” The or der of correction, which was entered nunc pro tunc to May 22, 2001, stated that

“it was the intent of this [c]ourt and the defendant to allow the defendant to appeal
a certified question of law pursuant to T enn. R. Crim. P. 37(b)(2)(i)” and that the defendant “reserved with the consent of the state and the court the right to appea l a certified

question of law that is dispositive of the case.” 3 The order also stated:

The . . . certified question was expressly reserved by

the defendant for appella te review and

the [c]ourt and the prosecutor are of the opinion that the question is dispositive of the case.-3- IT IS HEREBY ORDERED that the defe ndant . . . be allowe d to appeal the fore going

certifi ed questi on of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i), and that the Shelby County Public Defender be appointe d to perf

ect said appeal.

The Court of Cr

iminal Ap peals dis missed the appeal a fter finding tha

t the fina l judgme nt, which was entered on May 22, 2001, did not include a statement of the certified question of law for appeal as re qu ir ed by State v. Preston , 759 S.W.2d 647 (Tenn. 1988), and did not refer to any other document that contained a statement of the certified question of law. The court further c oncluded that the trial court’s later order of correction, which was entered nunc pro tunc two days later on May 24, 2001, was insuffic ient to satisfy the require ments in Preston

. The defenda

nt conce des that th

e form final j udgm ent of May 22, 2001, did not contain a statement of th e c ertified question of law for appeal, but he arg ues that the order of correction entered on May 24, 2001, contained all of the components for appealing a certified question of law following a nolo con

tendere plea and theref ore subst anti al ly c omplied with the re quireme nts in Preston

. The defendant further arg ues that the requirements established in Preston are no t jurisdictional and should be constr

ued in fa vor of re aching

the merit s of an app eal. The State responds that this Court has no t and shoul d not adop t a “substantial compliance” standard and that the Court of Criminal Appeals properly dismissed the ap peal under the well-established prerequisites in Preston

. We gran ted the a ppeal to r eview the se issues

.

Analysis

The Tennessee Rules of

Criminal Procedure, which, for the first time, authorized a criminal defendant to both plead guilty and a ppeal a certified question of law, were a dopted in July of 1978. In gener al, an appeal may

be pursued after a

plea of g uilty or nolo co ntender

e if the defendant has entere d into a ple a agreement und er Rule 11(e) of the Tennessee Rules of Criminal Procedure a nd has “explicitl

y r eserve d with the c onsent of the state and of the

[trial] cour

t the rig ht to appea

l a certified question of law that is dispositive of the case . . . .” Tenn. R. Crim. P. 37(b)(2)(i).

In State v. Preston , 759 S.W.2d 647 (Tenn. 1988), this Court provided detailed guidance on seeking appella te review of a ce

rtified q uestion of law pursu ant to Rule

37 by establishing several prereq uisites. We stated that “the final order or judgmen t from whi ch the time begins t o run to pursue . . . [an] appeal must contain a statement of the dispositive certified question of law reserved

. . . for appellate review” and that “the que stion of law mus t be st ated so as to clearly identify the scope and the limits of the legal issue reserved.” Id. at 650. Moreover, we emphasized that

the order must state that the certified question was expressly reserved
as part of a

plea ag reemen t, that the

State and

the tr ial judg e consentedto the reservation and that the State and the trial judge are4 The app ellant as serts t hat these requir ements are inconsist ent with t he rules of procedure that f avor a deci sion
on the me rits. See Tenn. R. Crim. P. 2; Tenn. R. App . P. 2. We disagree. The decision in Prest on was i nt end ed to establ ish a simple, uni form me thod by which c ertified q uestion s may b e pur sued on ap pea l. See Prest on , 759 S. W.2d at 650. Indeed, when Prest on was de cided, Rule 37(b)( 2) of the Tennessee Rules of Criminal Procedure contained no guidance or pr oce dure s for raisin g such app eals. In con tra st, the pres ent form of Rule 37, whi ch beca me ef fect ive on July 1, 2 002 , now c ontain s the exp licit Prest on requireme nts.
-4- of the opinion that the question is dispositive of the case. Of course, the burden is on the defendant to see that these prerequisites are in the final order and that the record brough t to the appellate courts contains all of the proceedings below that bear upo n whether the certified question of

law is dispositive and the merits of the question certified.

Id. 4

The Preston prerequisites have been strictly construed. I

n State v. Pe

nderg rass , 937 S.W.2d 834 (Tenn. 1996), for example, the final judgment forms did not contain a di spositive ce rtified question of law or make reference to the defendant’s intent to appeal any

such question. Id. at 835. After the defendant filed

a notice of appeal, however, the trial court entered an order stating that the defendant intended to appea l a certi fied que stion of la

w pursua nt to Rule 37, and that the issue to be appealed was dispositive of the case. See id. at 835-36. The Court of Criminal Appeals determined that the initial judgmen

t forms fa iled to satisfy the require

ments for appealing a certified que stion of law but that the trial court’s later order constituted substantial compliance with Preston

. See id. at 836.

We revers ed the Co urt of Cr iminal Appeals’ judgment. Like the inter mediate court, we concluded that the ju dgment f orms fail ed to comp ly w ith the “e xplicit and u

nambigu ous” requirements in Preston :

[T]he three . . . final judgments in this case, from which the time for
a Tenn. R. App. P. 3 appeal began to run, make no refe rence a t all to
a reservation of a dispositive que stio n of law for appellate review. Moreover, the judgments do not contain an identification of the scope and limits of the

legal i ssue res erved a s requir ed. Nor do the judg ments contain a

ny s tatement

in satisfa

ction of th

e reser vati o n require ments, nor do the

y c ontain any statement that the

question i s disp ositi ve, al l e xp li ci tl y re qu ir ed by Preston . Finally , these judgmen ts do not ref

er to or in

corpora te an y o ther independent document which would satisfy the Preston require ments.

Id. at 837. We, however, further held that the trial court’s later order did not comply with the Preston requirements because it was entered a fter the defendant

had filed a notice of appeal when the trial court no longer had jurisdiction to corre ct o missions or errors in the judgments. We did,5 “Cleric al mistak es in jud gme nts, ord ers, or o ther pa rts of t he recor d and errors in t he re cord ar isi ng f

rom oversight or omission may be corrected by the court at any ti me and after such notice, if any, as the court orders.” Tenn. R. Cri m. P. 36.
-5- however, recognize that the trial court has the power to cor rect the final judgment under

the autho rity of Rule 36 of the Tennessee Rules of Criminal Procedure when the c ourt has jurisdiction to do so. See id. at 837-38 . Accor

dingly , we dismis sed the a ppeal.

Two years la

ter, we considered a similar case in which the trial court’s effort to corr ect the final judgment to have it conform to the Preston requirements oc curred after the cour t lost jurisdiction. In State v. I rwin , 962 S.W.2d 477 (Tenn. 1998), t he trial c ourt failed to enter a final judgment after accepting the def

endant’s guilty plea. A

fter the filing of a

notice of appeal, the trial court entere d an “Ame

nded Ord er Acc epting Pl ea of Gu il t y,” which c ontained a reference to a certified question of law. We dismisse d the appeal because the certified que stion of law was not stated in a f

in al ju dg me nt or de r a s r eq ui re d b y Preston and the order of correction was entered after the filing of a notice of appeal when the tr ial court no longer had jurisdiction. Id. at 478-79.

Ac co rd in gl y, our prior d ecisions demonstrate that we have never applied a substantial
c ompliance st andard to the Preston requirements as urged by the defendant in this case. To the
co nt ra ry, we have described the requireme nts in Preston f

or appealing a certified question of law under Rule 37 of the Tennessee Rules of Criminal Procedure as “explicit and unambiguous.” Id. at 479; id. at 837. More over, we

agree with the Sta

te that a s ubstantia

l complian

ce stand ard woul d be very difficul t to apply in a consistent and uniform manner, and therefore would conflict with the very purpose of Preston . We therefore reject the defenda nt’s argume

nt that sub stantial c omplianc e with the requirements set forth in Preston is all that is necessary in or der to appeal a certified question of law.

One prior decision does reflect, however, that a tr i al court is not without the means or the authority by which to take c orrective action when it appears that a final judgment or order does not comply with the Preston requir

emen ts. As we pointed out in Penderg rass , “the trial court retains limited power to correct clerical mistakes in judgments and other errors in the record

arising from oversight or omission.” Id. at 837 (citing Tenn. R. Crim. P. 36) 5 . The curative measures taken by the trial courts to comply with the Preston require ments in both Penderg

rass and Irw in occurred after the notice of appeal had

been fil ed; thus, the trial courts in those cases no longer had jurisdiction. See Penderg

rass , 937 S.W.2d a

t 836-837; Irw in , 962 S.W.2d at 479.

In the pre sent case, the trial court filed a corrective order nunc pro tunc two days aft er th e f inal judgment was entered and before the defendant’s filing of a notice of a ppeal. Unlike Penderg rass and Irw in , the refore, the remedial action was taken while the trial court maintaine d jurisdiction over the case. Moreover, the corre ctive order entered

by the trial cou rt complie d with all of the Preston requirement s: it identified the question of law certified for appeal; it stated that t he question had been reserved for appe al following the defendant’s nolo contendere plea; an d i t stated that the issue was dispositive of the case. See Preston , 759 S.W.2d at 650. Although the final-6-

judgment itself did not make reference to a cer tified question of law, the corrective order was filed
nunc pro tunc to May 22, 2001, i.e. , the date the final judgments were entered while the trial court had jurisdiction in the case to correct omissions or deficiencies in the rec ord under Rule 36 of the Tennessee Rules of

Criminal Procedure. Similarly, while as a matter of form any

order which seeks to correct omissio ns or d eficiencies in the judgment under Rule 36 of the Tenne ssee Rules of Criminal Procedure should be labeled an “amendment” of the judgment, we must look to the substance of the trial court’s curative action. Accordingly, the circumstance s of this ca se demonstr ate that the requirements of Preston were met and that the defendant proper ly reserved a certified question of law for appeal.
Conclusion

After reviewing the record, we

conclude that the trial court’s corrective nunc pro tunc order entered after the final judgment while the trial court had jurisdiction and before the filing of a notice of appeal under

Rule 36 of

the Tennessee Rules of Cri minal Proc edure c omplied in a ll respects with the prereq

uisites fo r raising a certif ied quest ion of la w on ap peal pursuant to Rule 37 of the Tennessee Rules of Criminal Procedure under the circum stances of this case. Accordingly , we revers e th e jud gment and remand for the Court of Criminal Appeals to addre ss the merits of the appeal. Costs of this appeal are taxed to the State of Tennessee.

___________________________________ E. RIL EY ANDER SON, JUSTI CE-7- 

### IN THE SUPREME COURT OF TENNESS EE

AT JACKSON

STATE OF TENNESSEE v. MICHAEL ARMSTRONG

Criminal Court for Shelby County No. 00-00933 John P. Colton, Judge

No. W2001-01300-SC-R11-CD - Filed Fe bruary 5, 2003

JUDGMENT

This caus e came t

o be hea rd upon the

entire r ecord f rom the Cou

rt of Criminal Appe als, application for permission to appeal having been her etofore granted, and brief s and argument of counsel; and upon consideration thereof, this Court is of the opinion that the trial court’s corrective nunc pro tunc order entered after the fina l judgment while the trial court had jurisdiction and before the filing of a notice of appe al under Rule 36 of the Tennessee Rules of Criminal Procedure complied in all respects with the prerequisites for ra ising a certified question of law on appeal pursuant to Rule 37 of the Tennessee Rules of Criminal Proce dure under the circumstances of this case.

In accorda

nce with the opinion filed herein, it is therefore ORDERED that the judgme nt of the Court of Criminal Appeals is reversed and the case r emanded for the Court of Criminal Appeals to address the merits of the appeal. Costs of this appeal are taxed to the State of Tennessee.