         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                Assigned on Briefs May 18, 2016

               STATE OF TENNESSEE v. RICHARD DALE SMITH

                   Appeal from the Criminal Court for Hamilton County
                             No. 288256 Don W. Poole, Judge


                     No. E2015-01596-CCA-R3-CD – Filed July 6, 2016


After the trial court denied his motion to suppress, the Defendant, Richard Dale Smith,
pled guilty to driving under the influence (“DUI”). See Tenn. Code Ann. § 55-10-401.
As a condition of his guilty plea, he sought to reserve the right to appeal a certified
question of law challenging the trial court‟s denial of his motion to suppress. Following
our review of the record, we dismiss the appeal because the Defendant failed to properly
certify his question of law in accordance with Tennessee Rule of Criminal Procedure
37(b)(2).
                Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Johnny Houston, Jr., Chattanooga, Tennessee, for the appellant, Richard Dale Smith.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; M.
Neal Pinkston, District Attorney General; and Bates W. Bryan, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                   FACTUAL BACKGROUND1

       On May 29, 2013, a Hamilton County grand jury returned a true bill charging the
Defendant with failure to maintain his lane, DUI, and DUI per se. See Tenn. Code Ann.
§§ 55-8-123; -10-401. Thereafter, the Defendant filed a motion to suppress evidence
obtained following the stop of his vehicle, arguing that the traffic stop was not supported

1
  Because the jurisdictional issue raised by the State is determinative, we limit our factual recount to the
relevant procedural aspects of the case.
by reasonable suspicion. Following a hearing, the trial court denied the Defendant‟s
motion to suppress. The Defendant subsequently pled guilty to DUI, and the other two
counts were dismissed. The Defendant executed a “Petition to Enter Plea of Guilty and
Waiver of Trial by Jury,” which outlined his plea agreement and noted that the
Defendant‟s guilty plea was subject to the reservation of a certified question of law.
Specifically, the petition to plead guilty stated that the State, the trial court, and the
Defendant consented to the reservation of the certified question and were of the opinion
that it was dispositive of the case. Also, the following certified question was set forth:

       Whether the trial court erred in denying the Defendant‟s Motion to
       Suppress and/or Dismiss, based on [a]rticle I, [s]ection 7 of the Tennessee
       Constitution and the Fourth and Fourteenth Amendments to the
       Constitution of the United States holding that [the arresting officer] had
       sufficient legal grounds to stop the Defendant‟s vehicle[.]

        On July 21, 2015, a judgment of conviction was entered, which stated the above
certified question in the “Special Conditions” box. The judgment contained no statement
that the parties and court consented to the reservation of a certified question or that they
were of the opinion that it was dispositive.

                                       ANALYSIS

      On appeal, the Defendant challenges the denial of his motion to suppress, seeking
our review of the certified question memorialized on the judgment form. The State
responds that the Defendant‟s certified question is overly broad, does not reflect that the
State and the trial court consented to the reservation of the question, or that the
Defendant, the State, and the trial court agreed that it was dispositive of the case. The
Defendant has not replied to the State‟s argument.

        Our supreme court first set forth the prerequisites for certifying a question of law
in State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). In 2002, our legislature amended
Rule 37 to expressly adopt the Preston requirements. The current version of Rule 37
states that a criminal defendant may plead guilty and appeal a certified question of law
when the defendant has entered into a plea agreement under Rule 11(c) of the Rules of
Criminal Procedure and has “explicitly reserved—with the consent of the [S]tate 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:

       (i) the judgment of conviction or order reserving the certified question that
       is filed before the notice of appeal is filed contains a statement of the
       certified question of law that the defendant reserved for appellate review;

                                            -2-
        (ii) the question of law as stated in the judgment or order reserving the
        certified question identifies clearly the scope and limits of the legal issue
        reserved;

        (iii) the judgment or order reserving the certified question reflects that the
        certified question was expressly reserved with the consent of the [S]tate and
        the trial court; and

        (iv) the judgment or order reserving the certified question reflects that the
        defendant, the [S]tate, 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). Our supreme court has repeatedly made clear that the
requirements set forth in Preston, which are now embodied in Rule 37, are “explicit and
unambiguous.” State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003) (quoting State v.
Irwin, 962 S.W.2d 477, 479 (Tenn. 1998); State v. Pendergrass, 937 S.W.2d 834, 837
(Tenn. 1996)).

        The State asserts that the Defendant failed to satisfy three of the four requirements
for preserving a certified question of law. We are constrained to agree with the State that
the Defendant‟s effort to preserve a certified question of law is deficient for at least two
reasons:2 (1) the judgment does not contain a statement that the certified question was
reserved with the consent of the State and the trial court; and (2) the judgment does not
reflect that the Defendant, the State, and the trial court are of the opinion that the certified
question is dispositive of the case.

       We acknowledge that the petition to enter a guilty plea contains the certified
question along with statements that the trial court, the State, and the Defendant consented
to the reservation of a certified question and that the question is dispositive. However,
case law is clear that


2
  We do not pass upon the State‟s contention that the certified question fails to clearly identify the scope
and limits of the issue presented because there are other fatal deficiencies to the reservation of the
question. However, we do note that our supreme court has stated that a certified question without fact-
specific references may be sufficient to meet the rule‟s requirements. See State v. Springer, 406 S.W.3d
526, 531 (Tenn. 2013) (citing State v. Colzie, No. M1998-00253-CCA-R3-CD, 1999 WL 1044111, at *3
(Tenn. Crim. App. Nov. 30 1990) (finding that a certified question was sufficient when it was “evidence
that [the] statement of the issue [reflected] the grounds for suppression that [d]efendant asserted at the
trial court, even though it could have been more precisely drafted”)); see also State v. Harris, 919 S.W.2d
619, 621 (Tenn. Crim. App. 1995) (holding that even though “[t]he issue is not framed according to what
might be referred to as standard „law-school‟ format,” Preston requires only that a certified question
“clearly identify the scope and limits of the legal issues reserved”).

                                                    -3-
       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 [Tennessee Rule of Appellate Procedure] 3 appeal . . .
       must state that the certified question was expressly reserved as part of the
       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.

Preston, 759 S.W.2d at 650; see also State v. Danny Harold Ogle, No. E2000-00421-
CCA-R3-CD, 2001 WL 38755, at *1-2 (Tenn. Crim. App. Jan. 17, 2001) (dismissing
appeal due to failure to properly certify question even though transcript of the guilty plea
hearing “clearly reveal[ed] that all parties understood that the guilty plea was conditional
upon the reservation of a certified question of law” but the same was not reflected on the
judgment). Additionally, “the burden is on [the] defendant to see that these prerequisites
are in the final order . . . .” Preston, 759 S.W.2d at 650 (emphasis added). The judgment
does not contain the requisite statements that the State and the trial court agree to the
reservation of a certified question or that the Defendant, the State, and the trial court are
of the opinion that the certified question is dispositive of the case, and there is likewise
no order stating the same. Our supreme court has refused to apply a “substantial
compliance” standard to the requirements of Rule 37(b)(2). Armstrong, 126 S.W.3d at
912. Consequently, we have no choice but to add this case “to the growing heap of
appellate fatalities that have resulted when would-be appellants failed to heed the
Preston-Pendergrass litany of requirements for certified-question appeals.” State v.
Harris, 280 S.W.3d 832, 836-37 (Tenn. Crim. App. 2008) (citation omitted). Having no
jurisdiction to hear the appeal, it must be dismissed.

                                      CONCLUSION

       Based upon the foregoing and the record as a whole, the appeal is dismissed.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




                                             -4-
