         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 December 10, 2003 Session

          STATE OF TENNESSEE v. ROBERT BENJAMIN BOWEN

                    Appeal from the Criminal Court for Davidson County
                          No. 2002-T-257    Seth Norman, Judge



                   No. M2003-00513-CCA-R3-CO - Filed January 23, 2004


Upon his plea of guilty, the Defendant was convicted of DUI. In this appeal, he attempts to present
two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i).
Because we conclude that this appeal does not properly present certified questions of law, we dismiss
the appeal.

                   Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.
GLENN, JJ., joined.

Michael Fox, Nashville, Tennessee, for the appellant, Robert Benjamin Bowen.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Kristen Shea, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION


        Pursuant to his plea of guilty, the Defendant was convicted of DUI. See Tenn. Code Ann.
§ 55-10-401(1). We briefly summarize the facts as presented at the Defendant’s guilty plea
submission hearing. At about 2:30 in the morning on January 13, 2002, police officers were
dispatched to investigate a possible automobile accident. When they arrived at the given location,
they found the Defendant behind the wheel of his vehicle, which was located on railroad tracks
approximately one-fourth of a mile from the point where the railroad tracks intersected the nearest
roadway. The prosecutor stated that the vehicle had been driven down the railroad tracks and had
gotten “stuck.” After the officers got the Defendant out of the vehicle, they suspected him of being
under the influence of alcohol and asked him to perform certain field sobriety tests, which the
Defendant could not successfully perform. He subsequently agreed to submit to a breath alcohol test,
upon which he registered .21 percent.
        The transcript of the guilty plea proceeding indicates that the Defendant intended to appeal
certified questions of law pursuant to Rule of Criminal Procedure 37(b)(2), which provides that an
appeal lies from any judgment of conviction entered pursuant to a plea of guilty or nolo contendere
if

       (i) 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 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 the record before us, the only reference to the appeal of a certified question of law
contained within the judgment of conviction is the following statement found under “special
conditions”:

        Certified questions reserved-1) Whether, as required by elements of statute, the
        defendant was at the time of his arrest located at a place “generally frequented by the
        public at large” as intended by the statute, and if not 2) is the evidence sufficient to
        prove that the defendant either drove or was in physical control of motor vehicle on
        a public roadway while under the influence of an intoxicant.

It is apparent that this notation on the judgment of conviction does not meet the requirements for the
reservation of a certified question of law pursuant to Tennessee Rule of Criminal Procedure
37(b)(2)(i). We first point out that the judgment does not reflect that the certified question was
expressly reserved with the consent of the State and the trial judge. See Tenn. R. Crim. P.
37(b)(2)(i)(C). We next note that the judgment does not reflect that the Defendant, the State, and
the trial judge are of the opinion that the certified questions are dispositive of the case. See Tenn.
R. Crim. P. 37(b)(2)(i)(D).

        In addition, we must conclude that the questions of law stated in the judgment or document
do not clearly identify the scope and limits of the legal issues that the Defendant attempts to reserve.
The Defendant received a preliminary hearing, and this case was bound over to the Davidson County
grand jury. We surmise that the Defendant seeks to present for appellate review the question of
whether the evidence presented at the preliminary hearing is sufficient as a matter of law to support
a finding by a trier of fact of guilt beyond a reasonable doubt. However, while the record on appeal


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contains a copy of the transcript of the preliminary hearing, the judgment of conviction entered by
the trial court was based upon the Defendant’s plea of guilty, along with the factual basis for the plea
as presented by the prosecuting attorney at the plea submission hearing. At the preliminary hearing,
the only witness to testify was the first officer who appeared at the scene of the “accident.” At the
plea submission hearing, however, the Assistant District Attorney stated that if the case proceeded
to trial, the State would present testimony from two other named police officers, in addition to the
officer who testified at the preliminary hearing. It is apparent that the record does not include all the
evidence that the State intended to present at the trial of this case.

        Furthermore, we do not deem the “certified questions of law” that the Defendant attempts
to present in this appeal to be dispositive of this case. Even if at the time of his arrest the Defendant
was not located at a place generally frequented by the public at large, and even if the evidence
presented at the preliminary hearing was not sufficient to support a finding of guilt of DUI beyond
a reasonable doubt, the Defendant is not entitled, as a matter of law, to have his conviction vacated.

       Finally, we must observe that the “certified questions of law” set forth herein were neither
presented to nor ruled upon by the trial court. The jurisdiction of this Court is appellate only. See
Tenn. Code Ann. § 16-5-108(a). As this Court has stated,

        Preston requires final orders which clearly identify the scope and the limits of the
        legal issues in order to assure that appellate courts exercise their proper function of
        reviewing final judgments of trial courts. See Tenn. Code Ann. § 16-5-108(a)(1)
        (1994 Repl.). To present an issue on appeal which was not previously considered
        and ruled upon by the trial judge would enlarge the appellate court’s jurisdiction and
        involve the court in issuing advisory opinions. Consequently, before a reviewing
        court can rule on a certified question of law, the final order must contain a statement
        of the issue as well as the positions taken by the parties in the trial court. Review is
        limited to those issues “passed upon by the trial judge and stated in the certified
        question . . . .” State v. Preston, 759 S.W.2d at 650.

State v. James Hooper, No. 03C01-9402-CR-00055, 1994 WL 612413, at *2 (Tenn. Crim. App.,
Knoxville, Nov. 7, 1994).

       Because we conclude that the Defendant did not meet the requirements for reserving
appellate review of his “certified questions of law,” we dismiss this appeal.


                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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