        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 June 21, 2011 Session

                  STATE OF TENNESSEE v. JUSTIN GIBSON

             Direct Appeal from the Circuit Court for Williamson County
                     No. II-CR124574     Timothy Easter, Judge


              No. M2010-02361-CCA-R3-CD - Filed December 28, 2011


Defendant-Appellant, Justin Gibson, pled guilty to driving under the influence with a blood
alcohol level of .08 percent or more, a Class A misdemeanor. He agreed to a sentence of
eleven months and twenty-nine days, all of which was suspended after seven days’
incarceration. Gibson entered a conditional plea agreement and attempted to reserve a
certified question of law under Tennessee Rule of Criminal Procedure 37. The certified
question of law addressed whether the search of Gibson’s home violated his constitutional
rights and whether evidence obtained as a result should be suppressed. On appeal, he argues
that the warrantless search was not justified by either consent or exigent circumstances. We
conclude that we are without jurisdiction to consider the appeal because the order stating the
certified question was not filed until after Gibson filed his notice of appeal. The appeal,
therefore, is dismissed.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J OHN E VERETT W ILLIAMS, J., joined.

Jeremy W. Parham, Nashville, Tennessee, for the Defendant-Appellant, Justin Gibson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Kelly Lawrence, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       Background. On October 8, 2010, Gibson pled guilty to driving under the influence
with a blood alcohol level of .08 percent or more. He entered a conditional plea agreement
and attempted to reserve a certified question of law under Tennessee Rule of Criminal
Procedure 37. The judgment form for the DUI conviction, filed on October 19, 2010,
provided, “Sentence suspended pending certified question of law.” On November 1, 2010,
Gibson filed a notice of appeal declaring an intent to “appeal[] the previously stated and
submitted Certified Question of Law signed by the Honorable Timothy Easter on October
19, 2010.” On November 18, 2010, the trial court filed an “Order for Certified Question of
Law to the Court of Criminal Appeals.” The order stated that the State and the trial court
consented to Gibson’s certified question of law and that the State and the trial court believed
the question to be dispositive of the case. It also set out the previously omitted certified
question:

       Whether the entry and subsequent search of Defendant’s home by the
       Brentwood Police Department on or about July 11, 2009, violated the
       Defendant’s rights granted pursuant to the Fourth, Fifth and Fourteenth
       Amendments to the U.S. Constitution and whether any evidence, statements
       and blood tests obtained as a result of said search should be suppressed as the
       fruits of an unconstitutional search.

Significantly, on June 13, 2011, Gibson filed a motion with this Court for permission to file
a late notice of appeal, which was denied.

        As with any case appealed to this court, we must first determine whether we have
jurisdiction to consider the issues presented. Under Tennessee Rule of Criminal Procedure
37(b)(2)(A), a defendant may appeal from any order or judgment on a plea of guilty or nolo
contendere if the defendant reserves the right to appeal a certified question of law that is
dispositive of the case, so long as the following four requirements are met:

       (i) the judgment of conviction or other document to which such judgment
       refers that is filed before the notice of appeal, contains a statement of the
       certified question of law that the defendant reserved for appellate review;

       (ii) the question of law is stated in the judgment or document so as to identify
       clearly the scope and limits of the legal issue reserved;

       (iii) the judgment or document reflects that the certified question was
       expressly reserved with the consent of the state and the trial court; and

       (iv) the judgment or document reflects that the defendant, the state, and the
       trial court are of the opinion that the certified question is dispositive of the
       case[.]

Tenn. R. Crim. P. 37(b)(2)(A).



                                              -2-
        In State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996), the Tennessee Supreme Court
dismissed a case based on a failure to properly reserve the question before filing notice of
appeal. In Pendergrass, the defendant entered guilty pleas to several offenses, and defense
counsel informed the trial court that he would be filing a Rule 37 appeal on behalf of his
client. Id. at 835. The defendant’s January 15, 1993 judgment forms regarding his guilty
pleas failed to reference a certified question of law dispositive of the case. Id. On February
12, 1993, the defendant filed his notice of appeal. Id. Seven days later, on February 19,
1993, the trial court entered an order “purporting to note the appeal of a certified question
of law.” Id. The Tennessee Supreme Court concluded that since the notice of appeal had
been filed, the trial court was without jurisdiction to later enter an order purporting to amend
the judgment:

       As a general rule, a trial court’s judgment becomes final thirty days after its
       entry unless a timely notice of appeal or a specified post-trial motion is filed.
       Tenn. R. App. P. 4(a) and (c); State v. Moore, 814 S.W.2d 381, 382 (Tenn.
       Crim. App. 1991). The jurisdiction of the Court of Criminal Appeals attaches
       upon the filing of the notice of appeal and, therefore, the trial court loses
       jurisdiction. State v. Peak, 823 S.W.2d 228, 229 (Tenn. Crim. App. 1991);
       compare Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn. 1994). Once
       the trial court loses jurisdiction, it generally has no power to amend its
       judgment. Moore, 814 S.W.2d at 382. Indeed, it is well-settled that a
       judgment beyond the jurisdiction of a court is void. Brown v. Brown, 198
       Tenn. 600, 281 S.W.2d 492, 497 (1955).

937 S.W.2d at 837. In Pendergrass, the Tennessee Supreme Court stated that the February
19, 1993 order failed to satisfy the requirements under State v. Preston, 759 S.W.2d 647, 650
(Tenn. 1988). Id. at 837-38; see Preston, 759 S.W.2d at 650 (Tenn. 1988) (delineating the
several requirements for properly reserving a certified question of law, including that “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 defendant for
appellate review”). The court ultimately concluded, “The attempt at compliance [with the
entry of the February 19, 1993 order] was too late, as the trial court lost jurisdiction on
February 12, 1993, when the defendant filed the notice of appeal.” Id. at 837-38; see also
State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998) (concluding that an order setting out the
certified question of law which was entered after the filing of the notice of appeal failed to
comply with Preston and Rule 37).

       In this case, Gibson’s October 19, 2010 judgment form did not state the certified
question, nor did it refer to a document stating the question. Gibson filed a notice of appeal
with this court on November 1, 2010. The order reserving and stating the certified question
was filed on November 18, 2010. Because the notice of appeal was filed prior to the order

                                              -3-
stating the certified question, Gibson failed to comply with the requirements of Rule 37 and
State v. Pendergrass. To the extent that the order operated to amend the October 19
judgment, it was a nullity. The trial court no longer had jurisdiction to amend the judgment
once Gibson filed his notice of appeal. See Pendergrass, 937 S.W.2d at 837; see also State
v. Frank Randall Snowden, No. W2005-01851-CCA-R3-CD, 2006 WL 1303946, at *2
(Tenn. Crim. App., at Jackson, May 11, 2006) (stating that “the attempt to cure the defect in
the judgment with a supplemental order was a nullity” because the order was filed after the
notice of appeal, and the trial court no longer had jurisdiction); State v. Ruiz, No. M2000-
03221-CCA-R3-CD, 2001 WL 1246397, at *3 (Tenn. Crim. App., at Nashville, Oct. 17,
2001) (“[T]he order containing the certified questions was entered after the defendant filed
his notice of appeal; therefore the trial court no longer had jurisdiction to cure the flaws in
the appeal.”). Accordingly, this Court is without jurisdiction to consider the question
presented for our review, and the appeal is dismissed.

                                      CONCLUSION

      We conclude that Gibson did not properly reserve his certified question of law under
Rule 37(b)(2)(A). Accordingly, the appeal is dismissed.


                                                    ______________________________
                                                    CAMILLE R. McMULLEN, JUDGE




                                              -4-
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE

                STATE OF TENNESSEE v. JUSTIN GIBSON

                       Circuit Court for Williamson County
                                 No. II-CR124574


             No. M2010-02361-CCA-R3-CD - Filed December 28, 2011


                                     ORDER

       The opinion previously filed in this matter on November 22, 2011, is hereby
VACATED and the opinion filed contemporaneous with this order is substituted in lieu
thereof .

IT IS SO ORDERED.




                                      PER CURIAM
