        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 November 4, 2003 Session

             STATE OF TENNESSEE v. SYLVESTER GAILES, JR.

                 Direct Appeal from the Criminal Court for Shelby County
                            No. 00-12589    J.C. McLin, Judge



                  No. W2002-02080-CCA-R3-CD - Filed December 3, 2003


The defendant pled guilty to fourth offense driving under the influence (DUI-fourth offense), a
felony, and received a two-year sentence with all but 150 days suspended. Pursuant to a plea
agreement reserving a certified question of law, he contends that Tennessee Code Annotated section
55-10-403(a)(3), the statute setting forth the method of determining prior convictions, is
unconstitutional as applied to his case. We dismiss the appeal for lack of jurisdiction after
concluding the certified question of law is not dispositive of the case.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN EVERETT
WILLIAMS, JJ., joined.

Randall B. Tolley, Memphis, Tennessee, for the appellant, Sylvester Gailes, Jr.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Perry S. Hayes and Kimkea Lashea Harris,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

       The defendant was arrested on March 19, 2000, and charged with DUI-fourth offense, a
Class E felony. See Tenn. Code Ann. § 55-10-403(a)(1). The indictment alleged he had three prior
convictions for driving under the influence, one on November 28, 1994, and two on September 21,
1988. He pled guilty to DUI-fourth offense and, pursuant to a plea agreement, reserved a certified
question of law. In this appeal, he asks this court to determine whether the following highlighted
portion of Tennessee Code Annotated section 55-10-403(a)(3) is constitutional:

       For purposes of this section, a person who is convicted of a violation of § 55-10-401
       shall not be considered a repeat or multiple offender and subject to the penalties
       prescribed in subsection (a), if ten (10) or more years have elapsed between such
       conviction and any immediately preceding conviction for a violation. If, however,
       a person has been convicted of a violation of § 55-10-401 within ten (10) years of the
         present violation, then such person shall be considered a multiple offender and is
         subject to the penalties imposed upon multiple offenders by the provisions of
         subsection (a). If a person is considered a multiple offender under this subdivision,
         then every conviction for a violation of § 55-10-401, within ten (10) years of the
         immediately preceding violation shall be considered in determining the number
         of prior offenses, but in no event shall a conviction for a violation occurring
         more than twenty (20) years from the date of the instant conviction be
         considered for such purpose.

       The defendant contends the provision operates in an “unconstitutionally retrospective
manner” as it applies to his 1988 convictions for driving under the influence.1 Thus, he argues he
could only be prosecuted for DUI-second offense. We are unable to address the merits of this non-
dispositive issue since we are without jurisdiction to hear this appeal.

       Our state supreme court has outlined the requirements for certifying a question of law to the
appellate courts. See State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The Preston requirements
are now incorporated into Rule 37. See Tenn. R. Crim. P. 37(b)(2)(i), (iv). If those requirements are
not met, the appeal must be dismissed. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996).
Among the requirements for a properly certified question of law is that it must be “dispositive of the
case.” Tenn. R. Crim. P. 37(b)(2)(i), (iv).

         An issue is dispositive when the appellate court “‘must either affirm the judgment or reverse
and dismiss.’” State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001) (quoting State v. Wilkes, 684
S.W.2d 663, 667 (Tenn. Crim. App. 1984)). An issue is never deemed to be dispositive when the
appellate court might reverse and remand. Wilkes, 684 S.W.2d at 667. In the case under review,
the parties and the trial court certified the issue was dispositive of the case; however, an appellate
court is not bound by the trial court’s determination that an issue is dispositive. Preston, 759 S.W.2d
at 651. Rather, the court must make an independent determination of the dispositive nature of the
issue and must deny appellate review if the court determines the issue is not dispositive. Id.

        Recently, in State v. James H. Thompson, No. M2002-02137-CCA-R3-CD, 2003 Tenn. Crim.
App. LEXIS 889 (Tenn. Crim. App. Oct. 13, 2003, at Nashville), our court was asked to address a
similar certified question concerning the state’s right to prosecute a defendant as a multiple DUI
offender. Reasoning that the relief requested by defendant Thompson would merely necessitate a
remand rather than a dismissal, the court concluded the question before it was not dispositive of the
case. Id. at *7. Likewise, in the instant case, the defendant concedes the relief he seeks would not
result in the dismissal of the indictment; instead, it would require his case to be remanded for
consideration of the charge of DUI-second offense.




         1
         Although we do not ad dress the issue o n its merits, we do note that this court has addressed this issue on
numerous prior occa sions. See, e.g., State v. Robert A. Sisson, No. W2001-01666-CCA-R3-CD, 2003 Tenn. Crim. App.
LEX IS 197 , at *5 (T enn. C rim. App. M ar. 4, 2003 , at Jackson), perm. to app. denied (Te nn. 20 03); State v. Clever, 70
S.W.3d 771 , 776 -77 (T enn. C rim. App. 2 001 ); State v. Janice Carol Biskner, No. E2000-01440-CCA-R3-CD, 2001
Tenn. Crim. Ap p. LE XIS 887 , at *25 (Tenn. Crim. Ap p. Nov. 13, 20 01, at Kno xville).

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         Accordingly, the issue before us is not dispositive of the defendant’s case. Because the
certified question of law is not properly before this court, we dismiss for lack of jurisdiction.




                                                     JOE G. RILEY, JUDGE




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