        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 21, 2009

              STATE OF TENNESSEE v. ROBERT DALE JARVIS

                     Appeal from the Circuit Court for Lincoln County
                          No. S0700038 Robert Crigler, Judge



                  No. M2009-00074-CCA-R3-CD - Filed February 18, 2010


The Lincoln County Grand Jury indicted Appellant, Robert Dale Jarvis, for a total of twenty-
one counts including aggravated burglary, theft over $500, theft over $1,000, and vandalism.
Appellant pled guilty to two counts of theft over $500 and five counts of theft over $1,000.
As a result of the guilty plea, the trial court imposed an effective sentence of twelve years to
be served as a career offender at sixty percent. At the guilty plea hearing, the parties
discussed the reservation of a certified question upon which Appellant wanted to appeal. On
appeal, after a thorough review of the record, we conclude that Appellant has not properly
preserved the certified question of law. Therefore, we must dismiss this appeal for want of
jurisdiction.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Dismissed.

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL, JJ., joined.

Dorothy D. Buck, Fayetteville, Tennessee, for the appellant, Robert Dale Jarvis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Mike McCown, District Attorney General, and Hollyn Eubanks, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                           OPINION

                                      Factual Background

       In the January 2007 session, the Lincoln County Grand Jury indicted Appellant for
seven counts of aggravated burglary, two counts of theft over $500, five counts of theft over
$1,000, and seven counts of vandalism less than $500 based upon incidents that occurred in
February and March of 2006. On November 20, 2007, Appellant filed a “Motion for Fast
and Speedy Trial.” Appellant stated in this pleading that he was incarcerated in Alabama at
the time. On February 11, 2008, Appellant filed a “Request for Final Disposition.” On the
same date, the Alabama Department of Correction filed a copy of letter sent to the district
attorney which included Interstate Agreement Forms pursuant to the Interstate Agreement
on Detainers.

        On March 7, 2008, the trial court filed an “Order of Arraignment” in which the public
defender’s office was appointed to represent Appellant and the matter was continued until
April 8, 2008. According to the record on appeal, the matter was continued several times by
joint motion through June 3, 2008, when the trial court filed an order setting the trial for
December 8, 2008. On August 28, 2008, Appellant filed a motion to dismiss based upon the
Interstate Compact on Detainers and Appellant’s right to a speedy trial. On October 7, 2008,
the trial court denied the motion to dismiss. On December 2, 2008, Appellant entered guilty
pleas to two counts of theft over $500 with an agreed sentence of six years on each count and
five counts of theft over $1,000 with an agreed sentence of twelve years on each count. The
trial court ordered the sentences to run concurrently to each other for an effective sentence
of twelve years. Appellant was sentenced as a career offender and ordered to serve the
sentence at sixty percent.

        In the Petition to Enter a Plea of Guilty included in the record it states, “Defendant
may pursue certified question of law relating to speedy trial issue.” At the guilty plea
hearing, there was some discussion between the assistant district attorney, the trial court, and
Appellant’s attorney about the entry of a certified question. The trial court cautioned that
Appellant was responsible for framing the certified question for appeal. Appellant’s counsel
stated that the question was whether Appellant was denied his right to a speedy trial. The
certified question is neither set out in the judgments nor is it set out in any separate filing.
In addition, the judgments do not contain a statement incorporating by reference the certified
question.

       Appellant now appeals his guilty pleas based on his purported certified question.

                                         ANALYSIS

        Appellant presents an ostensible certified question of law on appeal in which he
argues that he was denied his right to a speedy trial. The State argues that Appellant has
failed to properly reserve his certified question of law for appeal, that this Court lacks
jurisdiction to consider the appeal and that the appeal should be dismissed.




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      In pertinent part, Rule 37(b)(2)(I) of the Tennessee Rules of Criminal Procedure
provides:


       An appeal lies from any order or judgment in a criminal proceeding where the
       law provides for such appeal, and from any judgment of conviction . . . upon
       a plea of guilty or nolo contendere if . . . the 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: (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; . . . .


       In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our Supreme Court made explicit
to the bench and bar exactly what the appellate courts require as prerequisites to the
consideration of the merits of a certified question of law. These requirements are as follows:

       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

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       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 . . . . No issue beyond the scope of the
       certified question will be considered.


Id. at 650; see also State v. Caldwell, 924 S.W.2d 117, 118 (Tenn. Crim. App. 1995). Failure
to properly reserve a certified question of law pursuant to Preston will result in the dismissal
of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). As the appellate
courts have written time and again, the requirements of Preston are extremely clear. See
Pendergrass, 937 S.W.2d at 837. This Court has consistently held that the Preston
requirements are jurisdictional.           See State v. Alaric Barrett Crouch, No.
01C01-9906-CC-00216, 2000 WL 31859, at *2 (Tenn. Crim. App., at Nashville, Jan. 18,
2000), perm. app. denied, (Tenn. 2000); State v. Stuart Allen Jenkins, No.
01C01-9712-CR-00590, 1998 WL 917806, at *2 (Tenn. Crim. App., at Nashville, Dec. 21,
1998); State v. Charlotte Little, No. 03C01-9504-CR-00113, 1996 WL 33174, at *3 (Tenn.
Crim. App., at Knoxville, Jan. 30, 1996); State v. Charles R. Sanders, No.
01C01-9312-CC-00420, 1994 WL 398823, at *1 (Tenn. Crim. App., at Nashville, July 21,
1994), perm. app. denied, (Tenn. 1994). In many of these cases the State, defendant and trial
court have all agreed, as evidenced by the guilty plea transcripts, 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 because this Court cannot assume
jurisdiction of a matter upon the agreement of the parties. State v. Wilkes, 684 S.W.2d 663,
667 (Tenn. Crim. App. 1984).

       In State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998), our Supreme Court relaxed the
Preston requirements somewhat by allowing a certified question to be set out in an
independent document, and such document to be incorporated by reference into the
judgment. However, in the case at hand, there is not even a document stating the certified
question.

       In the case herein, the judgment makes no mention of the reservation of a certified
question of law. The judgment does not reference or incorporate any document filed by
defense counsel in which the certified question of law is enumerated. In fact, we find no
place in the record where Appellant has set out his certified question in writing. The only
place a certified question is referenced in writing is in the Petition to Enter a Guilty Plea
where it states that Appellant may pursue a certified question related to speedy trial.
Accordingly, after carefully reviewing the record in this case, we determine that Appellant
has failed to properly reserve the right to appeal a certified question of law in accordance



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with the requirements of Tennessee Rule of Criminal Procedure 37. Finding the failure to
properly certify the question of law a jurisdictional defect, we must dismiss the appeal.

                                    CONCLUSION

      For the foregoing reasons, this appeal is dismissed.


                                         ___________________________________
                                         JERRY L. SMITH, JUDGE




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