         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 September 27, 2005 Session

            STATE OF TENNESSEE v. CURTIS EMMANUEL LANE

                      Appeal from the Criminal Court for Knox County
                              No. 73422 Ray L. Jenkins, Judge



                   No. E2004-02340-CCA-R3-CD - Filed November 2, 2005


The appellant, Curtis Emmanuel Lane, pled guilty to simple possession of marijuana and was
sentenced to eleven months and twenty-nine days, suspended upon payment of court costs and fines.
Pursuant to Rule 37 (b)(2)(i) of the Tennessee Rules of Criminal Procedure, the appellant attempted
to reserve a certified question of law to this Court on the issue of whether the evidence should have
been suppressed as the result of an illegal arrest. After a thorough review of the record, we conclude
that the appellant failed to properly reserve a certified question of law. Therefore, the appellant’s
issue is not properly before this Court, and this appeal is dismissed.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which NORMA MCGEE OGLE, and ALAN
E. GLENN , JJ., joined.

Mark E. Stephens, District Public Defender and Robert C. Edwards, Assistant Public Defender, for
the appellant, Curtis Emmanuel Lane.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
and Randall E. Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

       The appellant was indicted by a Knox County Grand Jury in September of 2001 for simple
possession of marijuana. Subsequently, the appellant filed a motion to suppress the evidence
obtained during a search incident to his arrest as well as a motion to dismiss the charge.

      At the hearing on the motion to suppress, Officer Kelly Tanner of the Knoxville Police
Department testified that on July 11, 2000, at about 5:30 p.m., he stopped the appellant’s car on Dora
Street in Knoxville because he noticed that “the vehicle that [the appellant] was driving was bearing
an expired license plate.” After stopping the appellant, Officer Tanner requested the appellant’s
identification. The appellant failed to produce any identification and did not have a driver’s license
or any other form of identification showing his name.

        At that time, the appellant told Officer Tanner his name, date of birth, and a social security
number. Officer Tanner was unable to verify the information because “[a]t the time, the mobile data
terminal in the car was out of service - or - let me back up and say that the NCIC capability was out
of service on the mobile data terminal.” The officer explained that he tried to check the veracity of
the information through the “records channel” and was advised that NCIC had been “pulled down”
for some reason. Officer Tanner then decided to arrest the appellant rather than give him a citation
because there was no way to verify the information. Upon the appellant’s arrest, Officer Tanner
found marijuana in the appellant’s possession. On cross-examination, Officer Tanner admitted that
the information that the appellant gave him turned out to be true once he was able to verify it.

       The trial court determined that the police officer properly arrested the appellant under the
circumstances and denied both the motion to suppress and the motion to dismiss, making the
following findings:

        The Court is of the opinion that the case of Tennessee v. Walker, 12 S.W.3d 460, is
        controlling. The proof from the arresting officer indicated that the license plate was
        expired, the defendant had no identification, no driver’s license, information given
        by the defendant could not be verified through no fault of either party, the NCIC was
        out of commission. Therefore, the defendant was arrested properly. . ..

        The appellant pled guilty to simple possession of marijuana on September 6, 2004. In
exchange for his guilty plea, the appellant received an eleven month, twenty-nine day sentence,
which was to be suspended upon payment of court costs and fines. The transcript of the guilty plea
hearing indicates that the appellant, State and trial court “agreed . . . [to] take a certified question of
law regarding the arrest on this matter to the Court of Criminal Appeals.” Defense counsel informed
the court that he had the “paperwork ready” for the certified question, but the parties agreed to
reserve judgment until everything was completed. On September 10, 2004, defense counsel
submitted an “addendum to the judgment for the certified question” and informed the trial court that
“everything is in a posture to be appealed on the certified question.” The “addendum to judgment”
and the judgment form were entered on the same day, September 10, 2004. The judgment form does
not reference the “addendum to judgment,” or the certified question of law. The “addendum to
judgment” contains the following language:

        This addendum has been prepared for counsel by the defendant and submitted to the
        court for approval in order to comply with Tennessee Rule of Criminal Procedure
        Rule 37 concerning the submission of a certified question of law to the Tennessee
        Court of Criminal Appeals. It is intended to be part and parcel of the judgment of
        conviction of the case styled above to which specific references hereby made and said


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       judgment makes specific reference hereto so that each document references the other.
       The Court therefore makes the following findings:

       A. The defendant has entered into a plea agreement under Rule 11(e) but has
       explicitly reserved with the consent of the State and the Court the right to appeal a
       certified question of law to the Court of [sic] Tennessee Court of Criminal Appeals
       that is dispositive of the case.

       B. That the judgment in this case must contain a statement of the certified question
       of law reserved by the defendant for appellate review. The question of law in this
       case is as follows:

                        “Did the defendant provide satisfactory evidence of identity
               when stopped by police when driving his automobile so as to entitle
               him to be cited and released for the offense of driving without a
               license in his possession; or was the officer entitled to arrest him as,
               [sic] allowed by Tennessee Code Annotated § 40-7-118, for failure
               to provide satisfactory evidence of identity.”

       C. The certified question expressed in the foregoing paragraph has been expressly
       reserved for appeal with the consent of the State and the trial judge.

       D. The defendant, the State, and the trial judge are all of the opinion that the certified
       question in the foregoing is dispositive under the facts of this case. . . .


       The appellant filed a timely notice of appeal, presenting the certified question for our review.


                                               Analysis

        The appellant presents an ostensible certified question of law on appeal in which he argues
that his arrest was illegal. The State argues that the appellant has failed to properly reserve his
certified question of law for appeal, that this Court lacks jurisdiction to consider the appeal and that
the appeal should be dismissed.

       In pertinent part, Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure provides:

       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 . . . upon a plea of
       guilty or nolo contendere if . . . the 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, and the


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       following requirements are met: (A) the judgment of conviction, or other document
       to which such judgment refers that is filed before the notice of appeal, must contain
       a statement of the certified question of law reserved by defendant for appellate
       review; (B) the question of law must be stated in the judgment or document so as to
       identify clearly the scope and limits of the legal issue reserved; (C) the judgment or
       document must reflect that the certified question was expressly reserved with the
       consent of the state and the trial judge; and (D) the judgment or document must
       reflect that the defendant, the state, and the trial judge are of the opinion that the
       certified question is dispositive of the case; . . . .

       In State v. Preston, 759 S.W.2d 647 (Tenn.1988), our Supreme Court made explicit to the
bench and bar exactly what the appellate courts require as prerequisites to the consideration of the
merits of a certified question of law. These requirements are 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 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. For
       example, where questions of law involve the validity of searches and the
       admissibility of statements and confessions, etc., the reasons relied upon by
       defendant in the trial court at the suppression hearing must be identified in the
       statement of the certified question of law and review by the appellate courts will be
       limited to those passed upon by the trial judge and stated in the certified question,
       absent a constitutional requirement otherwise. Without an explicit statement of the
       certified question, neither the defendant, the State nor the trial judge can make a
       meaningful determination of whether the issue sought to be reviewed is dispositive
       of the case. . . . Also, 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 of the opinion that the
       question is dispositive of the case . . . . No issue beyond the scope of the certified
       question will be considered.

Id. at 650; see also State v. Caldwell, 924 S.W.2d 117, 118 (Tenn. Crim. App. 1995). Failure to
properly reserve a certified question of law pursuant to Preston will result in the dismissal of the
appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). As the appellate courts have
written time and again, the requirements of Preston are extremely clear. See Pendergrass, 937
S.W.2d at 837. This Court has consistently held that the Preston requirements are jurisdictional.
See State v. Alaric Barrett Crouch, No. 01C01-9906-CC-00216, 2000 WL 31859, at *2 (Tenn. Crim.
App., at Nashville, Jan. 18, 2000), perm. app. denied (Tenn. 2000) ; State v. Stuart Allen Jenkins,
No. 01C01-9712-CR-00590, 1998 WL 917806, at *2 (Tenn. Crim. App., at Nashville, Dec. 21,
1998); State v. Charlotte Little, No. 03C01-9504-CR-00113, 1996 WL 33174, at *3 (Tenn. Crim.
App. at Knoxville, Jan. 30, 1996); State v. Charles R. Sanders, No. 01C01-9312-CC-00420, 1994


                                                -4-
WL 398823, at *1 (Tenn. Crim. App., at Nashville, July 21, 1994), perm. app. denied (Tenn. 1994).
In many of these cases the State, defendant and trial court have all agreed, as evidenced by the guilty
plea transcript, that the question is properly certified, only to have the State correctly argue on appeal
that the certification was not in compliance with Preston, requiring dismissal of the appeal because
this Court cannot assume jurisdiction of a matter upon the agreement of the parties. State v. Wilkes,
684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).

       In State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998), our Supreme Court relaxed the Preston
requirements somewhat by allowing a certified question to be set out in an independent document,
and such document to be incorporated by reference into the judgment. However, the “addendum to
judgment,” which would arguably satisfy the Preston requirements herein, is not incorporated by
reference into the final judgment entered on September 10.

        In the case herein, the judgment makes no mention of the reservation of a certified question
of law. The judgment does not reference or incorporate the “addendum of judgment” filed by
defense counsel in which the certified question of law is enumerated. Accordingly, after carefully
reviewing the record in this case, we determine that the appellant has failed to properly reserve the
right to appeal a certified question of law in accordance with the requirements of Tennessee Rule
of Criminal Procedure 37. Finding the failure to properly certify the question of law a jurisdictional
defect, we must dismiss the appeal.1

                                                     Conclusion

         For the foregoing reasons, this appeal is dismissed.


                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




         1
          W e are not unsympathetic to the appellant’s inevitable frustration with this Court’s dismissal of his appeal
despite his efforts at compliance with the Preston requirements. However, the holding in Preston and more recently
Tenn. R. Crim. P. 37(b)(2)(i) created a bright-line rule from which this Court may not depart. Because the final judgment
does not contain a statement of the certified question of law, nor does the judgment refer to an independent document
which would satisfy the requirements of Preston, we are left with no choice but to dismiss this appeal.



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