        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                      FEBRUARY SESS ION, 1998          July 7, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9703-CR-00086
                           )
      Appellee,            )
                           )
                           )    MONROE CO UNTY
VS.                        )
                           )    HON. CARROLL ROSS
RALPH TALLENT,             )    JUDGE
                           )
      Appe llant.          )    (DUI)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF MONROE COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

CHARLES L. BEACH                JOHN KNOX WALKUP
365 Market Street               Attorney General and Reporter
Clinton, TN 37716
                                TIMOTHY F. BEHAN
                                Assistant Attorney General
                                425 5th Avenu e North
                                Nashville, TN 37243

                                JERRY N. ESTES
                                District Attorney General

                                RICHARD NEWMAN
                                Assistant District Attorney General
                                P.O. Box 647
                                Athens, TN 37303



OPINION FILED ________________________

APPEAL DISMISSED

JERRY L. SMITH, JUDGE
                                   OPINION

       A Monroe County grand jury indicted Appellant, Ralph Tallent, with charges of

Driving Under the Influence. Appellant filed a motion to suppress admission of the

breath test. After a hearing, Appellant’s motion was denied. Appellant then filed a

motion in limine to require the State to lay an appropriate foundation through the testing

officer before admitting the results of the breath tests. Appellant then pled guilty

pursuant to Rule 37 (b)(2)(i) of the Tennessee Rules of Criminal Procedure.



       After a review of the record, we find that this appeal must be dismissed.



       In State v. Preston, the Tennessee Supreme Court set out the perquisites for

consideration on the merits of a certified question of law pursuant to Rule 37(b)(2)(i).



       1. The final order or judgment must contain statement of the dispositive question

of law reserved by defendant for appellate review;



       2. The order must state that the certified question was expressly reserved as

part of a plea agreement;



       3. The order must state that both the state and the trial judge have consented

to the reservation and are of the opinion that the question is dispositive of the case; and



       4. The question of law must be stated so as to clearly identify the scope and the

limits of the legal issues reserved.




                                            -2-
        State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988) (Accord State v. Harris, 919

        S.W.2d 619 (Tenn. Crim. App. 1995); State v. Pendergrass, 937 S.W.2d 834 (Tenn.

        1996)). In attempting to reserve a question of law, Defendant failed to properly follow

        the procedure as set out in Preston. The judgment of the trial court reflects that

        Defendant plead guilty subject to a Rule 37(b) appeal, but fails to set out the question

        as required under part (i) of the Preston procedure. Further, the order does not contain

        any indication by either the trial court or the State that the question raised by Defendant

        is dispositive of this matter.1



        Accordingly, this appeal is dismissed pursuant to Rule 20 of the Court of Criminal

        Appeals Rules.



                                                    ____________________________________
                                                    JERRY L. SMITH, JUDGE



        CONCUR:



        ___________________________________
        THOMAS T. WOODALL, JUDGE

        ___________________________________
        WILLIAM B. ACREE, JUDGE




        1
          It appears from the record that Appellant conceded in the trial court that the State had evidence
of his guilt other than the results of the breath alcohol test. It is highly questionable therefore whether the
issue presented herein can fairly be characterized as dispositive of this case.

                                                             -3-
