         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                           DECEMB ER SESSION, 1997       February 3, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,             )    C.C.A. NO. 03C01-9706-CC-00210
                                )
      Appellee,                 )
                                )
                                )    SEVIER COUNTY
VS.                             )
                                )    HON . BEN W. HO OPE R, II
JOSEPH PENDERGRASS,             )    JUDGE
                                )
      Appe llant.               )    (Certified Questions)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF SEVIER COUNTY


FOR THE APPELLANT:                   FOR THE APPELLEE:

EDWARD C. MILLER                     JOHN KNOX WALKUP
Public Defender                      Attorney General and Reporter
Fourth Judicial District
P.O. Box 416                         MICH AEL J . FAHE Y, II
Dandridge, TN 37725                  Assistant Attorney General
                                     425 5th Avenu e North
                                     Nashville, TN 37243-0490

                                     AL SCHMUTZER, JR.
                                     District Attorney General

                                     MIKE GALLEGOS
                                     Assistant District Attorney General
                                     Sevier County Courthouse
                                     Sevierville, TN 37862



OPINION FILED ________________________

APPEAL DISMISSED

DAVID H. WELLES, JUDGE
                                  OPINION

       This appea l attempts to prese nt certifie d que stions of law p ursua nt to R ule

3(b) of the Tennessee Rules of Appellate Procedure and Rule 37(b)(2 ) of the

Tennessee Rules of Criminal Procedure. The certified questions prima rily involve

the legality of a stop of a mo tor vehicle and a s ubseque nt search an d seizure

resulting therefrom. Because we conclude that this matter is not properly before

us, we dism iss this a ppea l.



       In April of 1996, a Pigeon Forge, Tennessee police officer stopped the

Defe ndan t’s vehicle because he thought the vehicle’s windows violated the motor

vehicle window tinting law. The Defendant was driving and the officer determined

that the Defendant’s driver’s license was revoked and that the Defendant was an

habitual motor vehicle offender. A search of the ve hicle re sulted in the seizure

of about a pound of marijuana.



       The Defendant was indicted for possession of marijuana with intent to sell

and for operating a motor vehicle in violation of the Motor Vehicle Habitual

Offen der’s Act.   T he De fenda nt filed a motio n to dis miss the m otor ve hicle

habitual offend er’s ind ictme nt on th e bas is that it fa iled to a llege a culpa ble

mental state. He filed a motion to suppress all evidence obtained as a resu lt of

the stop, alleging that both the stop and the resultant search were illegal. The

trial court o verrule d the D efend ant’s m otions.      Immediately thereafter, the

Defendant entere d an “o pen p lea” to e ach c ount o f the ind ictme nt “exp ressly

reserving the right to appeal the certified questions raised in the Motions



                                           -2-
Hearin g.” The trial judge entertaine d the gu ilty pleas from the Defendant on the

record and then stated, “Okay. We will then deal with this matter on April 25,

1997.” The judge neither announced nor entered a judg ment of con viction or a

senten ce.



        Approximately two months later an order was entered overruling the

Defe ndan t’s motions, accepting the Defendant’s pleas of guilty and allowing the

Defendant’s appeal of the following certified questions of law:

               1.    Whether the stop and subsequent arrest of the
        defendant was unlawful and therefore whether the marijuana found
        in the search of the defenda nt’s car should h ave been suppressed.

               2.    Wh ether, if the stop and arrest of the d efendant we re
        lawful, were th e sea rch an d seizu re of the mariju ana nonetheless
        unlawful and therefore should the marijuana have been suppressed.

        3.    Whether the indictment in this case should have been
        dismissed for failing to include the culpable mental state of
        “knowin g.”


        The Defendant filed a notice of appe al from this order. T he record contains

no judg ment o f conviction or sente ncing ord er.



        The Defen dant ha s attem pted to reserve his certified questions pursuant

to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure, which provides

that:

      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 : (2) [u]pon a plea of guilty or nolo contendere if: (i)
      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; (iv) Defendant explicitly reserved with the consent of the court
      the right to appeal a certified question o f law that is dispositive of the
      case.
Tenn. R . Crim. P. 37(b)(2 )(i) & (iv).

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      Our supreme court has also prescribed guidelines that must be adhered

to in order to perfect an appeal by Rule 37(b)(2)(i) and (iv). In State v. Preston,

759 S.W.2d 647 (Tenn. 1988), and again in State v. Pendergrass, 937 S.W.2d

834 (Tenn. 1996), the court held:



              This is an app ropriate time for this Court to make explicit to the
      bench and bar exa ctly what the appe llate courts will hereafter requ ire
      as prerequisites to the consideration of the merits of a question of law
      certified pursuant to Tenn. R. Crim. P. 37 (b)(2)(i) or (iv). Regardless
      of what has appeared in prior petitions, orders, colloquy in o pen court
      or otherwise, the final order or judgment from which the time beg ins to
      run to pursue a T.R.A.P. 3 appeal must contain a statement of the
      dispositive certified question of law reserved by defend ant for ap pellate
      review and the question of law must be stated so as to c learly identify
      the scope and the limits of the legal issue re served. For example,
      where questions of law involve the validity of searches and the
      admissibility of state men ts and confe ssion s, etc., th e reas ons re lied
      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 state d in the ce rtified ques tion, absent a constitutional
      requirement otherwise. With out an e xplicit statem ent of the c ertified
      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. Most of the reported and unreported cases
      seeking the limited appellate review pursuant to Tenn. R. Crim. P. 37
      have been dismissed because the certified question was not
      dispositive. Also, the order must state that the certified question was
      expre ssly 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. Of
      course, the burden is on defendant to see that these prerequisites are
      in the final order and th at the reco rd broug ht to the ap pellate co urts
      contains all of the proceedings below that bear upon whether the
      certified ques tion of la w is dispositive and the merits of the question
      certified. No issue beyond the scope of the certified question will be
      conside red.

Pendergrass, 937 S.W.2d at 836-37 (citing Preston, 759 S.W.2d at 650)

(emp hasis added). The Defendant bears the burden of “reserving, articulating,

and identifying the issu e.” Pendergrass, 937 S.W.2d at 838.




                                        -4-
      In the present case, it is clear from the reco rd that the D efenda nt, with the

agreement of the State and the trial court, attempted to reserve certified

questions concerning the validity of the stop, the search, and the indictme nt. It

is equally cle ar, howe ver, that Preston, Pendergrass, and Rule 37 of the

Tennessee Rules of Criminal Procedure have not been followed. There is no

final order or judgment in the record from which the time begins to run to pursue

a T.R.A.P. 3 appeal. The questions of law set forth in the order entered by the

trial court are not stated so as to clearly identify the scope and the limits of the

legal issues reserved. The reasons relied upon by the Defendant in the trial court

at the suppression hearing are not identified in the statement of the certified

question of law. There is no judgment of conviction. Obviously, at the time of the

appe al, the Defendant had been neither convicted nor sentenced, so the

underlying issues attempted to be presented on appeal are not necessarily

dispositive of the cas e.



      Given the clear, m andato ry langua ge of Preston and Pendergrass, we

must conclude that this appeal is not prope rly before us. Accordingly, we dismiss

the appeal of the certified questions and remand the case to the trial court for

such further proceedings as may be appropriate.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE




                                         -5-
CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                              -6-
