         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  September 27, 2005 Session

         STATE OF TENNESSEE v. PATRICIA ANN STARKEY, Alias

                   Direct Appeal from the Criminal Court for Knox County
                          No. 76046    Mary Beth Leibowitz, Judge



                   No. E2004-02696-CCA-R3-CD - Filed November 10, 2005


The defendant, Patricia Ann Starkey, pled guilty in the Knox County Criminal Court to DUI, a Class
A misdemeanor, and was sentenced to eleven months, twenty-nine days in the county jail with all
but seven days suspended. As a condition of her guilty plea, she sought to reserve as a certified
question of law whether the trial court erred in denying the evidence obtained as the result of her
allegedly unlawful arrest. However, upon review of the record, we conclude that the defendant failed
to properly preserve a question of law. Accordingly, we dismiss the appeal.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA MCGEE
OGLE, JJ., joined.

Mike Whalen, Knoxville, Tennessee, for the appellant, Patricia Ann Starkey, alias.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Al
Schmutzer, District Attorney General Pro Tem; and Patricia Cristil and Steven R. Hawkins, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                                FACTS

         On September 21, 2001, the intoxicated defendant rear-ended a vehicle that was stopped at
a red light at a Knoxville intersection. The defendant got out of her vehicle, approached the other
driver, told him six to eight times that she had a driver’s license, and then got back in her vehicle and
left the scene, striking three more vehicles and a fence as she departed. Knoxville Police Officer
John Ferguson, acting on information provided by eyewitnesses, tracked the defendant to her home
a short time later. The defendant had a bloody lip, smelled strongly of alcohol, and was so unsteady
on her feet that the ambulance attendants that Officer Ferguson called to her home had to help her
walk down the steps to the ambulance. In response to the officer’s request, the ambulance attendants
stopped briefly by the accident scene en route to the hospital so that the eyewitnesses could identify
the defendant. They then continued to the hospital, where a blood sample was drawn from the
defendant and Knoxville Police Officer Lee Shaw issued her a misdemeanor citation for driving
under the influence and failure to report an accident.

        On November 19, 2002, the Knox County Grand Jury indicted the defendant on two counts
of DUI, in violation of Tennessee Code Annotated section 55-10-401.1 The defendant subsequently
filed a motion to suppress “any and all evidence obtained after the unreasonable and unwarranted
arrest of [the defendant].” At the suppression hearing, Officers Ferguson and Shaw each described
his respective role in the investigation of the accident. Officer Ferguson explained that he called for
an ambulance because he believed the defendant needed immediate medical treatment and knew that
the detention center would not accept her with a bleeding mouth. Officer Shaw testified that the
defendant agreed to voluntarily submit a blood sample for testing and that neither he nor Officer
Ferguson ever arrested the defendant.

        At the conclusion of the hearing, the trial court overruled the motion to suppress, finding that
Officer Ferguson had reasonable grounds to place the defendant in the ambulance based on her
condition; that she had never been placed under arrest; and that she had voluntarily submitted to
having her blood drawn at the hospital. Thereafter, the defendant pled guilty to one count of DUI
in exchange for an eleven-month-twenty-nine-day sentence with all but seven days suspended and
the balance to be served on supervised probation. The trial court merged the second count of the
indictment into the first and, upon request of defense counsel, stayed service of the sentence pending
appeal.

                                                     ANALYSIS

       The defendant contends that the trial court erred in denying her motion to suppress evidence
obtained as the result of her allegedly unlawful arrest. The State responds by arguing that this court
has no jurisdiction to consider the suppression issue because the defendant failed to properly
preserve a certified question of law for appeal. We agree with the State.

       Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure provides that an appeal lies from
any judgment of conviction upon a plea of guilty or nolo contendere if:

                 (i) [T]he 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:



         1
          One count of the indictment charged the defendant with operating a vehicle while under the influence of an
intoxicant, and the other count charged her with operating a vehicle at a time when the alcohol concentration in her breath
was thirty hundredths of one percent (.30%).

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                (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[.]
Tenn. R. Crim. P. 37(b)(2)(i). Additionally, in State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our
supreme court emphasized that the burden is on the defendant to ensure that the conditions for
properly preserving an issue of law pursuant to Rule 37 have been met:

                This is an appropriate time for this Court to make explicit to the bench and
        bar exactly what the appellate courts will hereafter require 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 open court or otherwise, 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 and
        the question of law must be stated so as to clearly identify the scope and the limits
        of the legal issue reserved. . . . Also, the order must state that the certified question
        was expressly 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 that the record brought to the
        appellate courts contains all of the proceedings below that bear upon whether the
        certified question of law is dispositive and the merits of the question certified. No
        issue beyond the scope of the certified question will be considered.

Id. at 650.

         The transcript of the guilty plea hearing reflects that the parties were clearly in agreement that
the defendant’s guilty plea was contingent upon her right to appeal a certified question of law, which
was stated on her guilty plea agreement as follows: “Reserving the following Issue for Appeal:
Whether [the defendant] was unlawfully seized when she was removed from her home and returned
to the scene for an identification at the scene and then taken to the hospital for a blood test all against
her express will.” With respect to this issue, however, the judgment form states only that “[t]he
Court hereby stays serving of sentence pending appeal.” Nowhere on the judgment is there any kind
of recitation of the issue to be reserved for appeal, or a statement that the trial court and the State


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consented to the reservation of the issue and agreed that it was dispositive of the case. The judgment
form also fails to reference any other document that satisfies the Preston requirements.

         In State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003), our supreme court concluded that
a trial court’s remedial action to correct deficiencies in an original judgment was sufficient to satisfy
the Preston requirements when the trial court’s corrective order was entered before the notice of
appeal was filed and, thus, while the trial court maintained jurisdiction over the case. In the case at
bar, the defendant’s notice of appeal contains a recitation of the issue that she sought to reserve, but
there is nothing in the record to reflect that any corrective order, satisfying the Preston requirements,
was entered before the notice of appeal was filed. Under such circumstances, we must conclude that
the defendant did not meet the requirements for properly certifying a question of law for appeal.
Accordingly, we dismiss the appeal.

                                           CONCLUSION

       We conclude that the defendant has failed to satisfy the mandatory requirements for certifying
a question of law for appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2).
Accordingly, we dismiss the appeal.

                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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