        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 10, 2012

                    STATE OF TENNESSEE v. EVAN DEYO

              Direct Appeal from the Criminal Court for Shelby County
                       No. 10-03258     Paula Skahan, Judge




                 No. W2011-01179-CCA-R3-CD - Filed June 6, 2012


After being indicted for driving under the influence of intoxicants (DUI), reckless driving,
and violation of the implied consent law, Defendant, Evan Deyo, entered into a negotiated
plea agreement and reserved a certified question of law for appeal. The question reserved
for appeal specifically states the issue as: “whether the Court erred in denying the
Defendant’s Motion to Dismiss based on the fact that his pre-trial detention was not for a
valid remedial purpose but rather was punitive.” After review of the record and the briefs,
we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Blake D. Ballin, Memphis, Tennessee, for the appellant, Evan Deyo.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Edie Sellers, Assistant District
Attorney General; for the appellee, the State of Tennessee.

                                        OPINION

I. Background

       From the testimony of Defendant at a suppression hearing, a stipulation entered into
by Defendant and the State at that hearing, and from the guilty plea hearing, we find the
following are the facts of this case.
       On May 12, 2009, Defendant was the driver of a vehicle involved in an accident at
Whitten Road and Interstate 40 in Shelby County. Defendant, who was wearing a kilt, was
observed leaving the scene. Defendant was found by a deputy sheriff and returned to the
scene of the wreck, where he performed poorly on a field sobriety test. Defendant claimed
he was injured and requested that he be transported to a hospital by ambulance. Defendant
smelled strongly of intoxicants and “he admitted having been drinking.” He was taken to a
Memphis hospital. He refused consent for blood to be withdrawn for testing alcohol/drug
content, “was somewhat treated” for injuries, and left the hospital against the advice of
medical personnel.

       Defendant was given a misdemeanor citation in lieu of arrest because he was taken
to the hospital. He reported, as required, to be booked and processed (mug shot and
fingerprinting) on May 21, 2009. At that time he was also given a court date in Shelby
County General Sessions Criminal Court for May 29, 2009, for arraignment. He appeared
in Court as required on May 29, 2009, and bond was set in the amount of $2,000.00 by the
General Sessions Criminal Court Judge. Defendant made bond and was released from
custody that same day. At the suppression hearing, Defendant testified that he was not sure
how long he was detained before being released on bond but that it was “more than six
hours.” Interestingly, although the judgment of conviction provides that Defendant was to
be given credit for “time served,” that portion of the judgment, where pretrial jail credit is
supposed to be listed, was left blank.

       Defendant testified that he was not sure of the General Sessions Criminal Court
Judge’s reasoning for setting his bail at $2,000.00. Defendant admitted that at the time bail
was set, he had prior arrests for “underage driving while impaired” and for violation of the
implied consent law.

       The stipulation of facts agreed upon by the State and Defendant at the suppression
hearing is as follows:

        On May 12, 2009, the defendant was issued a misdemeanor citation
        charging him with Driving Under the Influence, Leaving the Scene of an
        Accident and Reckless Driving. At his arraignment on May 29, 2009, the
        defendant was taken into custody and a bail of $2,000.00 was set by Judge
        Ryan of General Sessions Div 15. At the time that this bond was set a
        judicial policy (a copy of which is attached to this stipulation) required a
        minimum bond of $1,000.00 on all Driving Under the Influence cases.




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        Attached to the stipulation and referenced therein is a memo signed by all nine Shelby
County General Sessions Criminal Court Judges, dated February 7, 2008, and which states
as follows:

                                          MEMO

        To:            Shelby County Judicial Commissioners
                       Shelby County Pretrial Services
                       Harvey Henderson, Administrator
                       General Sessions Criminal Court Clerk’s Office

        From:          General Sessions Criminal Court Judges

        Date:          February 7, 2008

        Re:            Bonds – Driving Under the Influence of an Intoxicant
                       (DUI)

        Effective as of Monday, February 11, 2008, all minimum DUI bonds are to
        be set at $1,000.00 (one thousand dollars). Also, effective as of the same
        date the attached form is to be used and filed in the court jackets of each
        DUI case at the time of the bond is [sic] setting.

                Please address any concerns to Judge Lambert Ryan, the
                Administrative Judge for the General Sessions Criminal
                Court.

       The “attached form” referred to in the memo is a form for a court order in the Shelby
County General Sessions Criminal Court designated as “Order on Bond Setting.” The form
has blank spaces to be filled in or checked, as applicable, to provide information on: (1) how
long a defendant has resided in Shelby County, (2) whether defendant is employed, (3)
defendant’s family ties, (4) defendant’s prior felony and misdemeanor convictions, (5) any
prior failures by defendant to appear in court or for booking and processing, (6) whether
defendant is on parole or probation and (7) any other pertinent factors. The following
appears toward the bottom of the order:

        The Judicial Commissioner has determined that the bail necessary to
        reasonably assure the appearance of the defendant while at the same time
        protecting the safety of the public should be set in the amount of
        ___________.

(Emphasis added).

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       Finally, there is a space provided for special conditions of bail to be listed, and,
significantly, the form order is specifically prepared to be signed by a Judicial Commissioner.

        No “Order on Bond Setting” pertaining specifically to Defendant’s case is included
in the record. However, since Defendant’s bond was set in open court by a General Sessions
Criminal Court Judge, rather than by Judicial Commissioner, the lack of an issued “Order on
Bond Setting” is not surprising. Defendant’s case ultimately went to Shelby County Criminal
Court by indictment as alluded to above, his motion to dismiss the charge of DUI was denied,
and he pled guilty pursuant to a negotiated plea agreement, reserving the certified question
of law for appeal.

II. ANALYSIS

       We can only review the precise issue stated in the certified question of law. State v.
Day, 263 S.W.3d 891, 900 (Tenn. 2008) (“As we have stated repeatedly, no issue beyond the
scope of the certified question will be considered.”) As noted above, the precise issue
reserved in the certified question of law is:

         [W]hether the Court erred in denying the Defendant’s Motion to Dismiss
         based on the fact that his pre-trial detention was not for a valid remedial
         purpose but rather was punitive.

        Defendant has altered the issue presented for appeal in his appellate brief from the
specific issue reserved at the time of the guilty plea. The issue is stated in the appellate brief
as follows:

         Whether prosecution is barred by Double Jeopardy if Defendant was
         detained under pro forma policy of the General Sessions Criminal Court of
         Shelby County while out on misdemeanor citation in lieu of arrest.

        In the actual issue reserved for appeal, this Court must resolve whether his pre-trial
detention was “punitive” rather than for a “valid remedial purpose,” and if so, whether the
trial court thus erred by denying Defendant’s motion to dismiss the indictment.

        The issue presented in the brief, however, would require this Court to determine
whether constitutional double jeopardy principles bar prosecution of Defendant because he
was detained under a “pro forma policy” of the Shelby County General Sessions Criminal
Court at the time that he was released on the charges pursuant to a misdemeanor citation in
lieu of arrest.




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        As per our Supreme Court’s holding in Day, we are prohibited from addressing the
precise issue asserted by Defendant in his brief, and our review in this case is strictly limited
to the precise issue reserved at the time of the guilty plea.

        In his brief, Defendant also asserts legal arguments which are not within the scope of
the issue he reserved for appeal:

        (1) “Appellant further asserts that the policy of the Shelby County General
        Sessions [Criminal] Court setting minimum bail of $1,000.00 on all DUI
        cases is unconstitutional under TENN. CONST. art. I § 16.” That
        constitutional provision provides that “excessive bail shall not be required.”

        (2) That minimum bail policy “is in conflict with the entire statutory scheme
        of the Bail Reform Act of 1978, T.C.A. §§ 40-11-101 et. seq.”

      Since these issues were not included within the certified question reserved for appeal,
we are unable to address them. We take this opportunity to refer to a footnote in our
Supreme Court’s opinion in Day:

        . . . . When crafting a certified question, both the defendant and the State
        would be prudent to review [Tennessee Rule of Criminal Procedure 37],
        craft the certified question to [ensure] that it meets each of the requirements
        delineated in subsection (b)(2)(A)(i)-(iv) of the Rule, and analyze whether
        the issue as stated in the judgment order is broad enough to meet the intent
        of both parties . . . .

Day, 263 S.W.3d at 900, n. 8.

        Defendant’s argument as to the limited issue actually reserved for appeal is that
jeopardy attached at his arraignment in General Sessions Criminal Court on May 29, 2009,
because “the consequent detention [ordering him to make bail of $2,000.00] constituted
punishment.” Defendant asserts that the detention was not related to a legitimate goal and
therefore this Court “may infer that the purpose of the pro forma detention was punitive
rather than remedial.” Accordingly, Defendant argues that “any further prosecution in this
matter is barred by the federal and state constitutions.”

       The State argues that Defendant was not placed in jeopardy until he entered his guilty
plea, and therefore is not entitled to relief in this appeal.

        The double jeopardy clause of the Fifth Amendment to the United States
        Constitution, applicable to the states through the Fourteenth Amendment,
        provides that no person shall “be subject for the same offense to be twice

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        put in jeopardy of life or limb. . . .” Article I, § 10 of the Tennessee
        Constitution provides that “no person shall, for the same offence [sic], be
        twice put in jeopardy of life or limb.

State v. Pennington, 952 S.W.2d 420, 422 (Tenn. 1997).

      The federal constitution’s protection against double jeopardy applies to the states
through the Fourteenth Amendment to the United States Constitution. Benton v. Maryland,
395 U.S. 784, 794 (1969); State v. Howard, 30 S.W.3d 271, 277 n. 7 (Tenn. 2000).

       Defendant primarily relies upon State v. Coolidge, 915 S.W.2d 820 (Tenn. Crim. App.
1995), overruled on other grounds by State v. Troutman, 979 S.W.2d 271 (Tenn. 1998).
Specifically, Defendant asserts that as applied to him

        or a similarly situated defendant who [is] issued a citation in lieu of arrest,
        the pro forma minimum bail policy imposes detention and $1,000.00 bail
        as a matter of course based solely on the charge, i.e. DUI, and therefore it
        is not reasonably related to a legitimate goal, and this Court may infer that
        the purpose is punitive. Coolidge, 915 S.W.2d at 823.

         Under the facts of his case, Defendant’s reliance on Coolidge is misplaced. A careful
review of the facts in the record shows that absolutely no proof was presented at the motion
hearing concerning why (1) Defendant was ordered to be removed from the status of
answering the charges pursuant to a citation with no bond, and (2) Defendant was ordered
to be taken into custody with a bail of $2,000.00. Defendant introduced no proof of the
proceedings in General Sessions Criminal Court: no transcript, no statement of the evidence,
and no live testimony. Defendant testified that he was not sure what the General Sessions
Judge’s reasoning was in setting bond at $2,000.00. Finally, the stipulation entered into by
the parties, and presented by Defendant at the motion hearing in Criminal Court, states that
at the time that Defendant’s bond was set at $2,000.00 by a General Sessions Judge, in open
court, a judicial policy, directed to Judicial Commissioners by the General Sessions Judges,
stated, “all minimum DUI bonds are to be set at $1,000.00 (one thousand dollars).

        We infer from what is available to us in the record that since Defendant’s bond was
set at $2,000.00, in open court by a General Sessions Judge (and not a Judicial
Commissioner) that Defendant’s bond was not set pursuant to the “pro forma policy”
Defendant attacks in the appeal. The fact that the bond was set at $2,000.00 rather than
$1,000.00 supports this inference. Also, a literal reading of the stipulation is that while the
parties stipulated the policy existed, there is no statement that Defendant’s bond of $2,000.00
was set solely because of the “pro forma policy.”




                                              -6-
       In Coolidge this Court held:

               The initial burden is on the defendant to make a threshold showing
        of double jeopardy. . . . In other words, the defendant must make an
        arguable showing that his pretrial detention qualified as punishment. That
        would depend on (1) whether the detention served an alternative purpose,
        and (2) whether that detention is excessive in relation to the purpose.

Coolidge, 915 S.W.2d at 823-24 (citations omitted).

       In Pennington, our supreme court noted,

                It is well established that jeopardy does not attach in preliminary
        pretrial proceedings. . . . Rather to be put in jeopardy, the defendant must
        be “subject to ‘criminal prosecution’ and put to trial.” United States v.
        Grisanti, 4 F.3d 173, 175 (2nd Cir. 1993). The proceeding must be
        “essentially criminal” and constitute an action “intended to authorize
        criminal punishment to vindicate public justice.” Id.

Pennington, 952 S.W.2d at 422 (some citations omitted) (emphasis added).

        All we know for sure from the record before us is that Defendant was removed, in a
hearing in open court, from a status of release by citation for his pending charges to being
released after making a $2,000.00 bail pending disposition of his charges, and that the
General Sessions Criminal Court Judges of Shelby County had issued a policy to the Judicial
Commissioners of Shelby County, that when bond is set in DUI cases, the minimum bond
is to be $1,000.00. A literal reading of the policy does not specifically prohibit release on
his/her own recognizance for a defendant - it simply provides that if bond is set by a Judicial
Commissioner, it is to be set at a minimum of $1,000.00. There is not sufficient proof in the
record that the setting of bond was punitive. Accordingly, Defendant is not entitled to relief
in this appeal.

                                      CONCLUSION

              The judgment of the trial court is affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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