         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      March 6, 2001 Session

             STATE OF TENNESSEE v. LILLIE FRAN FERGUSON

                       Appeal from the Circuit Court for Madison County
                                No. 99-938   Roger Page, Judge



                     No. W2000-01687-CCA-R3-CD - Filed April 27, 2001


The Defendant, Lillie Fran Ferguson, pled guilty to possession with intent to sell or deliver less than
.5 grams of a Schedule II controlled substance and to failure to obey a stop sign. As part of her plea
agreement, she expressly reserved with the consent of the trial court and the State the right to appeal
certain certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) relating
to the frisk of her person and the subsequent seizure of contraband. In this appeal, the Defendant
asserts that the trial court erred by refusing to suppress the evidence obtained against her as the result
of an unlawful frisk. She claims that the officer did not have reasonable suspicion that she was
armed and dangerous, thereby warranting a Terry pat-down, and that the incriminating nature of the
crack pipe felt by the officer during the pat-down was not immediately apparent within the meaning
of the “plain feel” doctrine. However, because the Defendant failed to properly certify her issues
for review, we are unable to reach the merits of her case. Accordingly, this appeal is dismissed.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

Lloyd Tatum, Henderson, Tennessee, for the appellant, Lillie Fran Ferguson.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General;
Jerry Woodall, District Attorney General; and James Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

        On August 5, 1999, at approximately 8:00 p.m., Officer Jeff Shepard of the Jackson Police
Department saw the Defendant, a sixty-one-year-old white female, enter a house in Jackson,
Tennessee. Officer Shepard was conducting surveillance on the house due to multiple anonymous
tips that crack cocaine was being sold at the house. About two days before, Officer Shepard had
arrested two men for possession of crack cocaine after they left the alleged “crack house.” Based
on the anonymous tips and the prior arrests, Officer Shepard suspected that the Defendant might
possess crack cocaine when she left the house.

        Officer Shepard followed the Defendant and initiated a traffic stop when she failed to stop
at a stop sign. Officer Shepard directed the Defendant to get out of her car, and he “conducted a
safety pat down of her person.” During the frisk, he felt an object which he perceived to be a crack
pipe in her pants pocket. Officer Shepard asked the Defendant whether she had any narcotics or
contraband on her, and she replied, “Yes, sir,” and pulled out the crack pipe. Officer Shepard then
asked the Defendant whether she had any crack on her, and she again replied, “Yes, sir,” and pulled
several rocks of crack cocaine from her shirt pocket. A search of the Defendant’s car revealed
another crack pipe and more crack cocaine.

        On June 14, 2000, the Defendant entered a guilty plea pursuant to Rule 37(b)(2) of the
Tennessee Rules of Criminal Procedure. On the same day, the trial court entered a “Final Order”
accepting the guilty plea and setting forth the Defendant’s certified questions of law. The “Final
Order” explicitly stated that the Defendant was reserving with the consent of the court and the State
the right to appeal certified questions of law which are dispositive of the case. The certified
questions were set forth as follows:
        whether the detention of the defendant after being cited for running a stop sign was
        lawful; whether the officer was justified in conducting a Terry search of the
        defendant’s person was lawful [sic]; and whether the subsequent seizures of
        contraband from the defendant’s person and vehicle were lawful.

Twelve days later, on June 26, 2000, judgment was entered against the Defendant. The judgment
form stated, “This plea taken pursuant to Rule 37, Tenn. Rules Crim. Proc.” It stayed some
conditions of probation “pending the outcome of the defendant’s appeal,” and the judgment provided
that other conditions of probation were not “stayed by the Defendant's appeal.” It did not set forth
any certified questions of law or make reference to the “Final Order,” which did set forth the issues.

       Tennessee Rule of Criminal Procedure 37(b) provides that an appeal lies from any judgment
of conviction
       (2) Upon a plea of guilty or nolo contendere if:
              (i) 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; or
       ...
              (iv) Defendant explicitly reserved with the consent of the court the right to
       appeal a certified question of law that is dispositive of the case.


       In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our supreme court set forth the following
prerequisites for appellate review of certified questions pursuant to this Rule of Criminal Procedure:


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       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. For
       example, where questions of law involve the validity of searches and the
       admissibility of statements and confessions, etc., the reasons relied upon by
       defendant in the trial court at the suppression hearing must be identified in the
       statement of the certified question of law and review by the appellate courts will be
       limited to those passed upon by the trial judge and stated in the certified question,
       absent a constitutional requirement otherwise. Without an explicit statement of the
       certified question, neither the defendant, the State nor the trial judge can make a
       meaningful determination of whether the issue sought to be reviewed is dispositive
       of the case. . . . 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 (emphasis added); see also State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996).
If the judgment itself does not satisfy the requirements of Preston but does refer to or incorporate
another document which would satisfy those requirements, then the certification of issues will be
sufficient for appellate review. See State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998); Pendergrass,
937 S.W.2d at 837.

         In this case, the judgment merely states, “This plea taken pursuant to Rule 37.” Obviously,
this statement does not satisfy the strict requirements of Preston. More importantly, it does not refer
to or incorporate the document entitled “Final Order,” which would arguably meet the requirements
of Preston. See Irwin, 962 S.W.2d at 479; Pendergrass, 937 S.W.2d at 837. Although Preston refers
to both a “final order” and “judgment,” it is the judgment of conviction from which time begins to
run to pursue an appeal as of right. See Preston, 759 S.W.2d at 650; Tenn. R. App. P. 3(b), 4(a).
Thus, titling a document, “Final Order,” when the document is not the judgment of conviction from
which an appeal lies, will not satisfy the requirements of Preston. We conclude that the judgment
document entered pursuant to the mandate of Supreme Court Rule 17 is clearly the “final order or
judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal” as referenced by Preston.
759 S.W.2d at 650. Thus, we have no choice but to hold that the Defendant did not properly reserve
her certified questions for review. We recognize that the result appears harsh in a case such as this,
where the intent of the parties, the express reservation, and the certified questions are readily
apparent from the record.


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      A panel of this Court recently observed,
              In many of these cases the state, defendant and trial court have all agreed (as
      evidenced by the guilty plea transcript) that the question is properly certified, only
      to have the state correctly argue on appeal that the certification was not in
      compliance with Preston, requiring dismissal of the appeal. The dismissal of the
      appeal leads to an unwieldy result. Since the plea was entered conditionally upon the
      certified question, the defendant has the opportunity to seek post-conviction relief
      from the conviction and guilty plea. The defendant, state, crime victims, and the trial
      court are now back to “square one,” in spite of everyone’s original agreement as to
      the substance of the plea agreement. It is then months or years after the original
      guilty plea. The defendant may re-enter his plea and properly certify the question
      back to this court. However, the defendant is not required to do so. Thus, in spite
      of everyone’s earlier agreement as evidenced by the transcript of the hearing, the
      parties are left in a quandary and, at the very least, face even more delay.

             Based upon the documented appellate history of guilty pleas with certified
      questions of law, we observe that it has become more of a trap than serving its
      intended purpose. In spite of repeated appellate cautions, the dictates of Preston are
      simply not being met and, according to its history, will not be met. Along these lines
      we observe that guilty pleas are often unanticipated until shortly prior to their entry
      with judgments prepared by the state or trial court and entered without approval by
      defense counsel. We further note that there is no requirement that either counsel
      approve the judgment. See Tenn. Sup. Ct. R. 17 (signatures of attorneys “optional”).
      Unfortunately, it appears there is undue prejudice to the state, crime victims,
      defendants and all involved in these cases because that which has clearly been agreed
      upon has not been written on the appropriate document at the appropriate time.

               Accordingly, we hope that Preston and/or Tenn. R. Crim. P. 37 will be re-
      examined. We intend absolutely no disrespect in this suggestion. We would hope
      that if the judgment itself does not contain the essential requirements, the appellate
      courts may still entertain an appeal; provided, it is apparent from other plea
      documents, the guilty plea transcript, orders entered while the trial court had
      jurisdiction, or any other proper record before the appellate court that, at the time of
      the guilty plea, the plea “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.”
      See Tenn. R. Crim. P. 37(b)(2)(i) and (iv). If the Preston requirements remain, we
      would hope that, at the very least, Tenn. R. Crim. P. 37 is amended to specifically
      incorporate these requirements.

State v. Danny Harold Ogle, No. E2000-00421-CCA-R3-CD, 2001 WL 38755, at *3-4 (Tenn. Crim.
App., Knoxville, Jan. 17, 2001).



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       Nevertheless, the procedural mandate in Preston allows for no exceptions, and this Court has
been repeatedly forced to dismiss cases which are not in strict compliance. See, e.g., id.; State v.
Jerry A. Murrell, No. E2000-0063-CCA-R3-CD, 2001 WL 15791, at *2-3 (Tenn. Crim. App.,
Knoxville, Jan. 8, 2001); State v. Robert Bassett Brown, No. M1999-00867-CCA-R3-CD, 2000 WL
502679, at *2 (Tenn. Crim. App., Nashville, Apr. 28, 2000); State v. Andrea McCraw, No. 03C01-
9903-CR-00106, 2000 WL 250146, at *2 (Tenn. Crim. App., Knoxville, Mar. 7, 2000), perm. app.
denied (Tenn. Nov. 6, 2000).

        Accordingly, we must conclude that the Defendant did not properly reserve her certified
issues for review. This appeal is therefore dismissed.

                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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