         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                September 18, 2001 Session

              STATE OF TENNESSEE v. NICHOLAS J. JOHNSON

                Direct Appeal from the Circuit Court for Williamson County
                        No. II-1199-374   Timothy L. Easter, Judge



                  No. M2000-03162-CCA-R3-CD - Filed November 6, 2001


The Appellant, Nicholas J. Johnson, presents for review a certified question of law. Johnson pled
guilty to two counts of possession of Schedule I drugs for resale, one count of possession of
Schedule IV drugs for resale, and simple possession. Johnson received an effective ten (10)-year
Community Corrections sentence, and was ordered to serve one hundred and fifty (150) days, day
for day, in the Williamson County Workhouse. As part of his plea, Johnson explicitly reserved,
with the consent of the trial court and the State, a certified question of law challenging the trial
court’s denial of his motion to suppress. After review, we find that the question was not properly
certified because it fails to clearly identify the scope and limits of the legal issue reserved.
Accordingly, the appeal is dismissed.

                             Tenn. R. App. P. 3; Appeal Dismissed.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JERRY
L. SMITH, J., joined.

Glenn R. Funk, Nashville, Tennessee, for the Appellant, Nicholas J. Johnson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E.
Williams, III, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon
Guffee, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                      Factual Background

       On November 8, 1999, the Appellant was indicted by the Williamson County Grand Jury for
two counts of possession of Schedule I drugs for resale, one count of possession of Schedule IV
drugs for resale, simple possession, possession of drug paraphernalia, driving on a revoked license,
and driving on a revoked license revoked for Driving Under the Influence. On December 22, 1999,
the Appellant filed a motion to suppress evidence seized during the search of his vehicle, challenging
the constitutionality of the stop and resulting search. The motion was denied.

       Thereafter, on May 15, 2000, the Appellant entered into a negotiated plea agreement under
Rule 11(e) of the Tennessee Rules of Criminal Procedure, in which he pled guilty to two counts of
possession of drugs, Schedule I, for resale; one count of possession of drugs, Schedule IV, for resale;
and simple possession. The plea was accepted by the trial court.

        As part of his plea, the Appellant, pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of
Criminal Procedure, explicitly reserved the right to appeal a certified question of law dispositive of
the case. The respective judgment of conviction forms entered on May 15, 2000, contained the
following notation within the special conditions section, “the defendant reserves right to appeal
court’s ruling on the motion/suppress.” The “Agreed Order” which was entered on May 23, 2000,
reserved the right to appeal the following certified question of law, “the validity of the search and
seizure of the defendant.”1

                                                    ANALYSIS

        The Appellant seeks review, under the provisions of Tenn. R. Crim. P. 37(b)(2)(i), of the trial
court’s denial of his motion to suppress the evidence. The State argues that the Appellant “failed
to properly reserve a certified question of law and therefore this court is without jurisdiction to hear
the appeal or vacate the plea agreement.”

       Under Rule 37(b)(2)(i), an appeal lies from a guilty plea if the final order or judgment
contains a statement of the dispositive certified question of law reserved by the Appellant, wherein
the question is so clearly stated as to identify the scope and limits of the legal issues reserved. State
v. Pendergrass, 937 S.W.2d 834, 836 (Tenn. 1996); State v. Preston, 759 S.W.2d 647, 650 (Tenn.
1988). No issue beyond the scope of the certified question will be considered. State v. Irwin, 962
S.W.2d. 477, 479 (Tenn. 1998) (quoting Preston, 759 S.W.2d at 650). Before a court may accept
an appeal made pursuant to Rule 37(b)(2)(i), the following prerequisites must be satisfied:

         1.       The final order or judgment must contain a statement of the dispositive
                  question of law reserved by the [Appellant] for appellate review.
         2.       The order must state that the certified question was expressly reserved as part
                  of the plea agreement.




         1
          The “Agreed Order” setting forth the dispositive question of law was neither referred to nor incorporated by
reference in the judgment of conviction form. It is sufficient for the judgment order to refer to or incorporate another
independent docum ent to satisfy the requirement that the judgment contain a statement of the dispositive certified
question of law. State v. Irw in, 962 S.W.2d 477 , 479 (Tenn. 1998); State v. Penderg rass, 937 S.W.2d 834, 837 (Tenn.
1996).

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

Preston, 759 S.W.2d at 650.

        We conclude that the certified question is not so clearly stated as to identify the scope and
limits of the legal issues reserved. The Appellant bears the burden of “reserving, articulating, and
identifying the issue.” Pendergrass, 937 S.W.2d at 838.

         Where questions of law involve the validity of searches and the admissibility of
         statements and confessions, etc., the reasons relied upon by the [Appellant] 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 statement otherwise. Without an explicit statement of the certified
         question, neither the [Appellant], the State nor the trial judge can make a meaningful
         determination of whether the issue sought to be reviewed is dispositive of the case.

Preston, 759 S.W.2d at 650 (emphasis added).

        In the present case, the issue reserved is “the validity of the search and seizure of the”
Appellant. This overly broad question violates the mandates announced in Preston. The question
is not only patently non-specific but also does not clearly identify the reasons relied upon by the
Appellant at the suppression hearing. Additionally, review of the question as presently framed
would potentially require a complete dissertation of the law of search and seizure of which this court
is not willing to engage in absent specific boundaries circumscribed by the Appellant. The holding
of Preston created a bright-line rule regarding the prerequisites for a Rule 37(b)(2)(i) appeal from
which this court may not depart. See generally Preston,759 S.W.2d at 650; but see State v. Harris,
919 S.W.2d 619, 621 (Tenn. Crim. App. 1995) (issue need not be framed in standard “law school”
format; statement satisfies Preston if appellate court can ascertain from the record the scope of the
issue presented).2

         We are without jurisdiction to review the merits of the Appellant’s claim because he has
failed to properly reserve his certified question of law by identifying the scope and limits of the legal
issue raised. Accordingly, the appeal is dismissed. In State v. Cheek, No. M2000-00203-CCA-R3-
CD (Tenn. Crim. App. at Nashville, Dec. 14, 2000), this court went further and vacated the guilty
pleas and the plea agreement and remanded the case to the trial court. Upon re-visitation, we find


         2
          The author of this opinion respectfully dissented from this court’s opinion in Harris , finding the certified
question too broad to compo rt with the requirements of Preston. See Harris , 919 S.W.2d at 625 (Ha yes, J., dissenting).

                                                          -3-
that this court lacks the authority to vacate the pleas and the agreement because we are without
jurisdiction over the subject matter due to noncompliance with Rule 37(b)(2)(i). It is well
established that “[a] [c]ourt acting without jurisdiction of the subject matter, or beyond the
jurisdiction conferred upon it, is therefore acting without authority of law and its judgments and
decrees in so acting are void and bind no one.” Brown v. Brown, 281 S.W.2d 492, 501 (Tenn. 1995)
(citing Sheffy v. Mitchell, 215 S.W.2d 403, 404 (Tenn. 1919)); see also Pendergrass, 937 S.W.2d
at 837; New River Lumber Co. v. Tenn. Ry. Co., 210 S.W. 639, 640 (Tenn. 1919); Bd. of Dirs. of
St. Francis Levee Dist. v. Bodkin Bros., 69 S. W. 270, 273 (Tenn. 1902); Baker v. Mitchell, 59 S.
W. 137, 138 (Tenn. 1900).


                                           CONCLUSION

        Because of the Appellant’s failure to properly frame his certified question of law, this court
is unable to reach the merits of the Appellant’s claim as this court has no jurisdiction to entertain this
appeal. See Tenn. R. Crim. P. 37(b)(2)(i). Accordingly, the appeal is dismissed.




                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




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