         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 11, 2006 Session

          STATE OF TENNESSEE v. FRANK RANDALL SNOWDEN

                   Direct Appeal from the Circuit Court for Gibson County
                            No. 7775    Clayburn Peeples, Judge



                     No. W2005-01851-CCA-R3-CD - Filed May 11, 2006


The appellant, Frank Randall Snowden, pled guilty in the Gibson County Circuit Court to a violation
of the residency restriction for convicted sex offenders, a Class A misdemeanor. He received a
sentence of eleven months and twenty-nine days, suspended. As a condition of his plea, the
appellant attempted to reserve a certified question of law as to “whether [Tennessee Code Annotated
section] 40-39-111 is constitutional under state and/or federal law and as applied to this [appellant].”
Upon review of the record and the parties’ briefs, we conclude that the appellant did not properly
reserve his certified question, and, therefore, the appellant’s appeal must be dismissed.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Brent Horst, Nashville, Tennessee, for the appellant, Frank Randall Snowden.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Stephanie J. Hale, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

        On January 25, 2005, the appellant was indicted for violating Tennessee Code Annotated
section 40-39-111(a) (2003), which code section provides, “No sexual offender as defined in § 40-
39-102(4), shall knowingly establish a residence or accept employment within one thousand feet
(1,000') of the property on which any public school, private or parochial school, licensed day care
center, or any other child care facility is located.” On July 28, 2005, the appellant pled guilty to the
charge. The plea agreement form indicated that the appellant wished to reserve a certified question
of law, specifically “whether [Tennessee Code Annotated section] 40-39-111 is constitutional under
state and/or federal law and as applied to this defendant.”1 A judgment of conviction was entered
the same day, reflecting that a “SUPPLEMENTAL ORDER SHALL ENTER AS TO THE
CERTIFIED QUESTION OF LAW AND IS INCORPORATED BY REFERENCE AS IF SET
FORTH HEREIN VERBATIM.”

        On August 5, 2005, the appellant filed a notice of appeal of his judgment of conviction. Five
days later, on August 10, 2005, the trial court entered a supplemental order stating that the appellant
“will enter a plea of guilty to the charge within the indictment, reserving the right to appeal a
dispositive issue of law, that being the constitutionality of the law pursuant to the ex-post fact[o]
clause of the Tennessee, and United States Constitution.”2 The order provided that the issue was
reserved with the consent of the court, the State, and the appellant and that all parties agreed the issue
was dispositive of the case.

       On appeal, the appellant complains that “[t]he trial court erred in denying the Appellant’s
motion to dismiss the indictment because T.C.A. § 40-39-111 is unconstitutional. Appellant further
submits that the current version of the statute, 40-39-211, is also unconstitutional and should be
declared to be unconstitutional by this court.” The State argues that the appellant failed to properly
reserve his certified question and that there is no merit to the appellant’s complaints.

                                                    II. Analysis

        Before we may examine the merits of the appellant’s complaints, we must first determine
whether the appellant has properly reserved his certified question, giving this court jurisdiction to
entertain his appeal. Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure provides that
an appellant may appeal from any judgment of conviction occurring as a result of a guilty plea if 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


        1
            The transcript of the plea hearing was not included in the record for our review.

        2
            An identical order was filed by the trial court on August 17, 2005.

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               (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.

Alternately, a defendant may “reserve[] with the consent of the court the right to appeal a certified
question of law that is dispositive of the case, and the requirements of subsection (i) are met, except
the judgment or document need not reflect the state’s consent to the appeal or the state’s opinion that
the question is dispositive.” Tenn. R. Crim. P. 37(b)(2)(iv).

        In State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988), our supreme court explicitly provided
prerequisites to appellate consideration of a certified question of law under Rule 37(b)(2). The 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 at 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.

Id. (emphasis added).

        In State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003), our supreme court again
considered the Preston/Rule 37 requirements and concluded that substantial compliance with the
dictates of Preston was not sufficient to properly certify a question of law. However, Armstrong
provided that a trial court could take corrective action prior to the judgment becoming final in order
to comply with Preston. Armstrong, 126 S.W.3d at 912.

         Upon our review of the record, we agree with the State that the dictates of Preston were not
strictly met. The judgment of conviction entered on July 28, 2005, failed to, by itself, properly
reserve a certified question of law. Moreover, the judgment of conviction failed to incorporate by
reference the plea agreement which set out the appellant’s certified question. The judgment of
conviction instead incorporated by reference a subsequent order which was to set forth the
parameters of the appellant’s certified question. The appellant filed his notice of appeal, and five
days later, the trial court filed a supplemental order which purported to contain the appellant’s
certified question. Once the notice of appeal was filed, the jurisdiction of this court attached, and,
correlatively, the trial court lost jurisdiction. Therefore, the attempt to cure the defect in the
judgment with a supplemental order was a nullity. See Armstrong, 126 S.W.2d at 912; State v.
Irwin, 962 S.W.2d 477, 479 (Tenn. 1998); State v. Pendergrass, 937 S.W.2d 834, 837-38 (Tenn.
1996); State v. Danny Harold Ogle, No. E2000-00421-CCA-R3-CD, 2001 WL 38755, at *4 (Tenn.
Crim. App. at Knoxville, Jan. 17, 2001). The appellant bears the burden of ensuring that the
Preston/Rule 37 requirements are met. Preston, 759 S.W.2d at 650. Based upon the record before


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us, we must conclude that the appellant failed to properly certify his question of law for appellate
examination.

        Furthermore, we note that even if the supplemental order had been filed in a timely fashion,
it would not have served to satisfy the dictates of Preston or Rule 37. Preston requires that a final
order “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.” 759 S.W.2d at 650 (emphasis added). This mandate is echoed
in Rule 37(b)(2)(i)(B) of the Tennessee Rules of Criminal Procedure. In the instant case, the
judgment of conviction did not state the certified question. As we noted earlier, the supplemental
order, which was referenced by the judgment of conviction, stated that the appellant “reserv[ed] the
right to appeal a dispositive issue of law, that being the constitutionality of the law pursuant to the
ex-post fact[o] clause of the Tennessee, and United States Constitution.” This wording does not
clearly identify the scope or limits of the issue reserved and thus does not serve to properly reserve
the appellant’s certified question. See State v. Long, 159 S.W.3d 885, 887 (Tenn. Crim. App. 2004).

                                          III. Conclusion

       Based upon the foregoing, we dismiss the appellant’s appeal.



                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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