         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 19, 2001 Session

                   STATE OF TENNESSEE v. SIGIFREDO RUIZ

                Direct Appeal from the Circuit Court for Williamson County
                         No. I-700-227    Donald P. Harris, Judge



                   No. M2000-03221-CCA-R3-CD - Filed October 17, 2001


A Williamson County grand jury indicted the defendant on one count of possession of not less than
ten pounds, one gram of marijuana nor more than seventy pounds of marijuana with intent to sell or
deliver. Through counsel the defendant filed a motion to suppress any evidence or statements
resulting from the allegedly unconstitutional search of the defendant’s vehicle. When the motion
to suppress was denied, the defendant waived his right to a trial by jury and pled guilty as charged.
For this offense the trial court sentenced the defendant as a Range I, standard offender to two years,
which would be suspended after the service of one hundred days, day for day; placed him on
supervised probation for a period of four years; and fined him five thousand dollars. According to
the Negotiated Plea Agreement form, there was also an agreement with the State that the defendant
would later submit a certified question of law to this Court. Through this appeal the defendant asks
us to consider two search related issues. However, the State asserts that the defendant did not
properly reserve the certified questions, and, thus, this Court lacks jurisdiction to consider them.
Finding the State’s position has merit, we, therefore, dismiss this appeal.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and DAVID G.
HAYES, J., joined.

Mario Ramos, Nashville, Tennessee, for appellant, Sigifredo Ruiz.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Ron
Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney, for appellee, State
of Tennessee.
                                                     OPINION

                                              Factual Background1

        The defendant faced D felony possession of marijuana charges stemming from the search
of his pick-up truck. As aforementioned, the defendant pled guilty to the charged offense and
received a two year sentence to be suspended after the service of one hundred days, day for day; four
years on supervised probation; and a five thousand dollar fine. The videotapes of the defendant’s
guilty plea submission hearing and of his sentencing hearing unquestionably reflect his intent to seek
appellate review of a certified question.2 Furthermore, the technical record supports this intent.
Prior to entering his plea, the defendant signed a form entitled “Negotiated Plea Agreement.” Also
written on the form is the following statement: “Will submit certified question to Court Criminal
Appeal [sic] in a separate order.” In keeping with that statement, the record presented includes an
agreed order submitting for review to this Court whether “the stop and search [was] constitutional
under the 4th Amendment” and whether “the use of the canine [was] constitutional under the 4th
Amendment.” Since this was an agreed order, the State at the trial court level obviously offered no
opposition. Nevertheless, at the appellate level the State filed a motion to dismiss contending that
this Court lacked jurisdiction because the alleged certified questions were not properly reserved.
This Court denied the motion, ordering the State “to file an appellate brief . . . includ[ing] a response
to the [defendant’s] contention that his guilty plea should be vacated.” Within its brief the State
again argued that this Court did not have jurisdiction to consider the matters raised by the defendant.
After reviewing the State’s threshold issue, we find it to have merit and, therefore, dismiss the
defendant’s appeal.


                   Alleged Improper Reservation of a Certified Question of Law

        Under the Tennessee Rules of Criminal Procedure, a defendant pleading guilty may reserve
for appeal a certified question of law dispositive of his or her case. Tenn. R. Crim P. 37(b)(2)(i),
(iv). In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), the Tennessee Supreme Court set out the
required steps to successfully preserve this type of appeal. Id. at 650. The Preston Court stated:

         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 [the] 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
         .... Without an explicit statement of the certified question, neither the defendant, the

         1
           Because we find the jurisdictional issue raised by the State determinative, we limit our factual presentation
to only the procedural aspects of the case.

         2
           During the plea subm ission hearing, defense counsel even asked a question concerning the procedure for
reserving the c ertified questio ns because of his unfamiliarity with th is type of app eal.

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       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 the 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. Of course, the
       burden is on [the] defendant to see that these prerequisites are in the final order....

Id.
         Approximately eight years later, our supreme court quoted this language with approval in
State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996). During Pendergrass’ plea, reference
was clearly made to his reservation of a certified question of law. Id. at 835. Nevertheless, the
judgment subsequently entered on January 15, 1993, contained no mention of a reservation of the
right to appeal a dispositive certified question of law. Id. On February 12, 1993, “the defendant
filed a notice of appeal ‘pursuant to Rule 37,’” and one week later “the trial court entered an order,
purporting to note the appeal of a certified question of law.” Id. However, the supreme court
dismissed the appeal. Id. at 838.
         In support of its dismissal, the Pendergrass court cited the defendant’s failure to comply with
Preston, which resulted in the appellate court’s lack of jurisdiction. Id. at 837-38. The supreme
court observed, for example, that the judgments did not reference the reservation of a certified
question; that the judgments did not contain a statement indicating that the certified question would
be dispositive of the case; that the judgments did “not refer to or incorporate any other independent
document which would satisfy the Preston requirements,” etc. Id. at 837. Furthermore, the supreme
court observed that the trial court had lost jurisdiction upon the defendant’s filing of his notice of
appeal. Id. at 837-38. Along this line the Pendergrass Court agreed with the State’s portrayal of the
February 19th order as “an attempt to confer jurisdiction on the Court of Criminal Appeals to hear
and determine a Preston appeal where no jurisdiction existed because of noncompliance with Rule
37.” Id. at 837. The supreme court further found that even if these matters had not precluded review,
the order did not clearly identify “the scope and limits of the legal issue reserved.” Id. at 838.
         Turning to the case presently before this Court, we find the rationale of Pendergrass
controlling because of numerous factual similarities. For example, the defendant in the instant appeal
made reference within his plea agreement form to reserving a certified question of law. However,
no mention was made of this in the judgment entered on December 4, 2000. On December 11, 2000,
the defendant filed his notice of appeal and on the same day mailed to the assistant district attorney
handling the defendant’s case a copy of the aforementioned agreed order outlining the certified
questions. The record reflects that the Williamson County Circuit Court Clerk’s Office received the
agreed order on the 12th, and the trial judge signed the order on the 13th. As in Pendergrass, the order
containing the certified questions was entered after the defendant had filed his notice of appeal;
therefore, the trial court no longer had jurisdiction to cure the flaws in the appeal. Furthermore, the
agreed order includes no statement that the certified questions listed are dispositive of the case. We




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also note that the questions listed lack the requisite limitation of the issues presented.3 See e.g., State
v. Randall L. Cheek, No. M2000-00203-CCA-R3-CD, 2000 WL 1838584, at *4 (Tenn. Crim. App.
at Nashville, Dec. 14, 2000).
        Our decision is further informed by the more recent case of State v. Danny Harold Ogle, No.
E2000-00421-CCA-R3-CD, 2001 WL 38755 (Tenn. Crim. App. at Knoxville, Jan. 17, 2001,
permission to appeal denied, June 4, 2001). At the time of Ogle’s plea, all parties involved were
aware that he intended to reserve a certified question for appeal. Id. at *1. Both his plea agreement
form and the transcript of his plea submission reflected this. Id. Nevertheless, the judgment entered
on January 14, 2000 does not include the question though it does state: “CERTIFIED QUESTION
OF LAW RESERVED FOR APPEAL (SEE SUPPLEMENTAL ORDER).” Id. On February 17,
2000, the trial judge signed and the trial clerk entered the referenced supplemental order. Id.
However, the defendant had filed his notice of appeal one week previously. Id. Among other
considerations, the court ruled that the trial court’s supplemental order was “a nullity” 4 and could
not cure the Preston defects that prevented this Court from acquiring jurisdiction. Id. at *2-3. To
further support its determination, the court provided numerous cases affirming “that the Preston
requirements are jurisdictional.” Id. at * 3.
        In sum, through Preston in 1998, our supreme court outlined the procedure to be followed
to preserve a certified question for appeal. Preston, 759 S.W.2d at 650. It emphatically re-affirmed
this procedure in Pendergrass. Pendergrass, 937 S.W.2d at 836-37. Thus, presented with the facts
of the instant case, this Court must conclude that the defendant has not complied with Preston and
that we are, therefore, precluded from considering the matters raised by the defendant.
        The question then remains as to the proper disposition of this appeal in view of our
conclusion that we do not have jurisdiction to consider this appeal. This Court has entered
inconsistent opinions with respect to this issue. In State v. Ogle 2001 WL 38755, at *3, a panel of
this Court declined to go ahead and vacate the guilty plea and simply dismissed the appeal. The
panel found that a post-conviction petition was the proper vehicle for determining whether the
defendant’s guilty pleas were involuntary or the product of ineffective assistance of counsel because
they were premised on the belief that his certified question would be decided on the merits. Id.
        In State v. Cheek, 2000 WL 1838584, at *4-5, another panel of this Court, after finding an
improper reservation of a certified question and thus a lack of jurisdiction, nevertheless went ahead
and vacated the guilty plea as being involuntary because it was based on a belief that the certified
question would be considered.


         3
              In Pendergrass , our supreme court provided guidance regarding the detail needed to preserve certified
questions. Pendergrass , 937 S.W .2d at 650 . The supr eme cou rt stated:
         For example, where qu estions of law inv olve the valid ity of searches an d the adm issibility of
         statements and confessions, etc., the reasons relied upon by [the] 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 c ourts will be limited to those passed upon by the trial judge and stated in the certified
         question, absent a constitutional requirement otherwise.
Id.

         4
          The court also observed that Ogle’s supplemental order was filed thirty days after the entry of the jud gment,
which had, the refore, bec ome final. Ogle , 2000 WL 38755, at *3.

                                                          -4-
        Having reviewed the opinions in both Ogle and Cheek, we have concluded that the better
procedure is to simply dismiss the appeal. Because the reasons a defendant pleads guilty may be
varied, it is not necessarily the case that the inducement to pled guilty is the ability to have a certified
question considered on appeal. The defendant may have pled guilty even without the certified
question. Such questions are better answered at an evidentiary hearing in a post-conviction
proceeding. We therefore adopt Ogle as providing the proper disposition of appeals under the
circumstances presented by the instant case. That portion of the opinion in Cheek indicating the
appropriate disposition in such cases is the vacation of the guilty plea by the appellate court is hereby
expressly overruled.


                                               Conclusion

       For the foregoing reasons, we find that the State’s issue has merit. Accordingly, the
defendant’s appeal is DISMISSED.



                                                          ___________________________________
                                                          JERRY L. SMITH, JUDGE




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