IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 14, 2002 Session

STATE OF TENNESSEE v. MICHAEL ARMSTRONG

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 00-00933 John P. Colton, Judge

No. W2001-01300-SC-R11-CD - Filed February 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 final judgment satisfied the requirements for the defendant to appeal a certified

question of law pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The Court

of Criminal Appeals concluded that neither the order nor the final judgment met the requirements

for appealing a certified question of law set forth in State v. Preston, 759 S.W.2d 647 (Tenn. 1988),

and dismissed the appeal. After reviewing the record, we conclude that the trial court’s order of

correction under Rule 36 of the Tennessee Rules of Criminal Procedure was entered while the trial

court had jurisdiction before the filing of a notice of appeal and therefore complied with the

prerequisites for raising a certified question of law on appeal under the circumstances of this case.

Accordingly, we reverse the judgment and remand for the Court of Criminal Appeals to address the

merits of the appeal. 

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals

Reversed and Remanded to the Court of Criminal Appeals 

E. RILEY ANDERSON,J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J.,

and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

A. C. Wharton, Jr., Shelby County Public Defender; W. Mark Ward, Assistant Shelby County Public

Defender; William W. Heaton and Deborah Brandon, Memphis, Tennessee, for the appellant,

Michael Armstrong.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Braden H.

Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Hall,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
1

See Tenn. Code Ann. § 55-1-616 (1998).

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

3

 The stated issue was “[w]hether the trial judge erred in refusing to suppress [the defendant’s] incriminating

statements given to Memphis Police officers on April 20, 1999, in which the defendant admitted driving an automobile

because said statements were taken in violation of the Fifth Amendment privilege against self-incrimination, the

requirements of Miranda v. Arizona, and were involuntary in violation of the [Fourteenth] Amendment.”

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Background

The defendant, Michael Armstrong, was indicted on February 3, 2000, by the Shelby County

Grand Jury for the offense of operating a motor vehicle after having been found a habitual motor

vehicle offender.1 The defendant thereafter filed a motion in the trial court seeking to suppress his

oral statement of admission of driving a motor vehicle that he had made to a police officer. The

motion alleged that the admission was made during a custodial interrogation by the police officer

in the absence of Miranda2

 warnings. The trial court conducted a hearing on the motion to suppress

and found that the defendant was not in custody when the oral admission was made and therefore

Miranda warnings were not required. Accordingly, the court denied the motion.

Sometime later, the defendant negotiated a plea agreement whereby he pleaded nolo

contendere to the offense in return for a one-year suspended sentence and one year of probation

conditioned on reserving the right to appeal a certified question of law on the trial court’s ruling on

the motion to suppress. The transcript of the guilty plea hearing on May 22, 2001, clearly reflects

that the trial court, the State and the defendant agreed that the plea of nolo contendere was

conditioned on reserving the appeal of a certified question of law, and that the issue was dispositive

of the case. 

Unfortunately, the negotiated plea agreement forms contain no reference to the certified

question of law. In addition, on May 22, 2001, the trial court entered a standardized 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 certified 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 appeal of the certified question of law. Two days

later, on May 24, 2001, the trial court entered an “Order Allowing Appeal After Guilty Plea on

Certified Question of Law.” The order 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 Tenn. R. Crim. P. 37(b)(2)(i)” and that the defendant

“reserved with the consent of the state and the court the right to appeal 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

appellate review and the [c]ourt and the prosecutor are of the opinion

that the question is dispositive of the case.
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IT IS HEREBY ORDERED that the defendant . . . be allowed to

appeal the foregoing certified question of law pursuant to Tenn. R.

Crim. P. 37(b)(2)(i), and that the Shelby County Public Defender be

appointed to perfect said appeal.

The Court of Criminal Appeals dismissed the appeal after finding that the final judgment,

which was entered on May 22, 2001, did not include a statement of the certified question of law for

appeal as required 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 concluded

that the trial court’s later order of correction, which was entered nunc pro tunc two days later on

May 24, 2001, was insufficient to satisfy the requirements in Preston. 

The defendant concedes that the form final judgment of May 22, 2001, did not contain a

statement of the certified question of law for appeal, but he argues 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 contendere plea and therefore substantially complied with the requirements in

Preston. The defendant further argues that the requirements established in Preston are not

jurisdictional and should be construed in favor of reaching the merits of an appeal. The State

responds that this Court has not and should not adopt a “substantial compliance” standard and that

the Court of Criminal Appeals properlydismissed the appeal under the well-established prerequisites

in Preston.

We granted the appeal to review these issues.

Analysis

The Tennessee Rules of Criminal Procedure, which, for the first time, authorized a criminal

defendant to both plead guilty and appeal a certified question of law, were adopted in July of 1978.

In general, an appeal may be pursued after a plea of guilty or nolo contendere if the defendant has

entered into a plea agreement under Rule 11(e) of the Tennessee Rules of Criminal Procedure and

has “explicitly reserved with the consent of the state and of the [trial] court the right to appeal 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 appellate review of a certified question of law pursuant to Rule 37 by establishing several

prerequisites. We stated that “the final order or judgment from which the time begins to run to

pursue . . . [an] appeal must contain a statement of the dispositive certified question of law reserved

. . . for appellate review” and that “the question of law must be stated 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 agreement, that the State and the trial judge

consented to the reservation and that the State and the trial judge are
4

 The appellant asserts that these requirements are inconsistent with the rules of procedure that favor a decision

on the merits. See Tenn. R. Crim. P. 2; Tenn. R. App. P. 2. We disagree. The decision in Preston was intended to

establish a simple, uniform method by which certified questions may be pursued on appeal. See Preston, 759 S.W.2d

at 650. Indeed, when Preston was decided, Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure contained no

guidance or procedures for raising such appeals. In contrast, the present form of Rule 37, which became effective on

July 1, 2002, now contains the explicit Preston requirements.

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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 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.

Id.4

 

The Preston prerequisites have been strictly construed. In State v. Pendergrass, 937 S.W.2d

834 (Tenn. 1996), for example, the final judgment forms did not contain a dispositive certified

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 appeal a certified question of law pursuant 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 judgment forms failed to satisfy the requirements for appealing a certified question

of law but that the trial court’s later order constituted substantial compliance with Preston. See id.

at 836. 

We reversed the Court of Criminal Appeals’ judgment. Like the intermediate court, we

concluded that the judgment forms failed to comply with the “explicit and unambiguous”

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 reference at all to

a reservation of a dispositive question of law for appellate review.

Moreover, the judgments do not contain an identification of the scope

and limits of the legal issue reserved as required. Nor do the

judgments contain any statement in satisfaction of the reservation

requirements, nor do they contain any statement that the question is

dispositive, all explicitly required by Preston. Finally, these

judgments do not refer to or incorporate any other independent

document which would satisfy the Preston requirements.

 

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 after the defendant had filed a notice of appeal when

the trial court no longer had jurisdiction to correct omissions or errors in the judgments. We did,
5

 “Clerical mistakes in judgments, orders, or other parts of the record and errors in the record arising from

oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” Tenn.

R. Crim. P. 36.

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however, recognize that the trial court has the power to correct the final judgment under the authority

of Rule 36 of the Tennessee Rules of Criminal Procedure when the court has jurisdiction to do so.

See id. at 837-38. Accordingly, we dismissed the appeal.

Two years later, we considered a similar case in which the trial court’s effort to correct the

final judgment to have it conform to the Preston requirements occurred after the court lost

jurisdiction. In State v. Irwin, 962 S.W.2d 477 (Tenn. 1998), the trial court failed to enter a final

judgment after accepting the defendant’s guilty plea. After the filing of a notice of appeal, the trial

court entered an “Amended Order Accepting Plea of Guilty,” which contained a reference to a

certified question of law. We dismissed the appeal because the certified question of law was not

stated in a final judgment order as required by Preston and the order of correction was entered after

the filing of a notice of appeal when the trial court no longer had jurisdiction. Id. at 478-79.

Accordingly, our prior decisions demonstrate that we have never applied a substantial

compliance standard to the Preston requirements as urged by the defendant in this case. To the

contrary, we have described the requirements in Preston for 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. Moreover, we agree with the State that a substantial compliance standard would be

very difficult to apply in a consistent and uniform manner, and therefore would conflict with the very

purpose of Preston. We therefore reject the defendant’s argument that substantial compliance with

the requirements set forth in Preston is all that is necessary in order to appeal a certified question of

law.

One prior decision does reflect, however, that a trial court is not without the means or the

authority by which to take corrective action when it appears that a final judgment or order does not

comply with the Preston requirements. As we pointed out in Pendergrass, “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 requirements in both Pendergrass and Irwin occurred after

the notice of appeal had been filed; thus, the trial courts in those cases no longer had jurisdiction.

See Pendergrass, 937 S.W.2d at 836-837; Irwin, 962 S.W.2d at 479.

In the present case, the trial court filed a corrective order nunc pro tunc two days after the

final judgment was entered and before the defendant’s filing of a notice of appeal. Unlike

Pendergrass and Irwin, therefore, the remedial action was taken while the trial court maintained

jurisdiction over the case. Moreover, the corrective order entered by the trial court complied with

all of the Preston requirements: it identified the question of law certified for appeal; it stated that

the question had been reserved for appeal following the defendant’s nolo contendere plea; and it

stated that the issue was dispositive of the case. See Preston, 759 S.W.2d at 650. Although the final
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judgment itself did not make reference to a certified 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 record under Rule 36 of the

Tennessee Rules of Criminal Procedure. Similarly, while as a matter of form any order which seeks

to correct omissions or deficiencies in the judgment under Rule 36 of the Tennessee 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 circumstances of this case

demonstrate that the requirements of Preston were met and that the defendant properly 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 Criminal Procedure complied in all respects with

the prerequisites for raising a certified question of law on appeal pursuant to Rule 37 of the

Tennessee Rules of Criminal Procedure under the circumstances of this case. Accordingly, we

reverse the judgment and remand for the Court of Criminal Appeals to address the merits of the

appeal. Costs of this appeal are taxed to the State of Tennessee.

___________________________________ 

E. RILEY ANDERSON, JUSTICE
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IN THE SUPREME COURT OF TENNESSEE

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 February 5, 2003

JUDGMENT

This cause came to be heard upon the entire record from the Court of Criminal Appeals,

application for permission to appeal having been heretofore granted, and briefs 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 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

Criminal Procedure complied in all respects with the prerequisites for raising a certified question

of law on appeal pursuant to Rule 37 of the Tennessee Rules of Criminal Procedure under the

circumstances of this case. 

In accordance with the opinion filed herein, it is therefore ORDERED that the judgment

of the Court of Criminal Appeals is reversed and the case remanded for the Court of Criminal

Appeals to address the merits of the appeal. Costs of this appeal are taxed to the State of

Tennessee.