         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     June 8, 2004 Session

               STATE OF TENNESSEE v. HARRIL JAY WISDOM

                Direct Appeal from the Circuit Court for Rutherford County
                        No. F-51405    James K. Clayton, Jr., Judge



                      No. M2002-02664-CCA-R3-CD - Filed July 9, 2004


The defendant pled guilty to violation of a motor vehicle habitual offender (“MVHO”) order, a Class
E felony, in exchange for a one-year sentence in the Department of Correction. With the permission
of the trial court and the State, he sought to reserve as a certified question of law whether the
expiration prior to his offense of the three-year time period specified in the order declaring him a
MVHO precluded his prosecution for the offense. Because we conclude that the defendant failed
to meet the requirements for properly reserving a certified question of law pursuant to Tennessee
Rule of Criminal Procedure 37(b)(2), we dismiss the appeal.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and JOE G. RILEY ,
JJ., joined.

Gerald L. Melton, District Public Defender; and Russell N. Perkins, Assistant District Public
Defender, for the appellant, Harril Jay Wisdom.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and John W. Price, III, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

        On October 1, 2001, the Rutherford County Grand Jury charged the defendant, Harril Jay
Wisdom, with violation of a MVHO order and driving on a cancelled, suspended, or revoked license
for driving a motor vehicle on April 11, 2001, at a time when he had been declared a MVHO
pursuant to an order entered in the Circuit Court of Rutherford County on June 19, 1997. The June
1997 order declaring the defendant a MVHO provided, in part, that the defendant was prohibited
from operating a motor vehicle in the state for a period of three years. Although the three-year time
limit had expired by the time of the defendant’s offense, he had not taken the steps to have his
MVHO status lifted and his license reinstated.

        On September 26, 2002, the defendant pled guilty to the MVHO count of the indictment in
exchange for a one-year sentence in the Department of Correction, with the second count of the
indictment dismissed. The transcript of the guilty plea hearing reveals that the defendant intended
that his guilty plea be conditioned on his right to appeal his certified question of law to this court
and, further, that both the trial court and the State consented to the reservation of the question for
appeal and agreed that the issue was dispositive of the case. The defendant’s judgment form,
however, which was entered that same day, failed to contain a recitation of the certified question.
Instead, the “Special Conditions” section contained the following language: “Amended Judgment
to certify question for appeal to be entered. Count 2 dismissed.” On October 25, 2002, the
defendant filed his notice of appeal. On December 11, 2002, the trial court entered the following
“Supplemental Order” which was approved by the assistant district attorney and counsel for the
defendant:

                        This cause came on to be heard on the 26th day of September,
               2002, before Honorable James K. Clayton, Jr., Judge. Based upon the
               agreement of the defendant in open court, and further based upon the
               evidence presented and the agreement of counsel for both the State
               and the Defendant as evidenced by their respective signatures below,
               it is hereby ORDERED that the following question is certified to the
               Court of Criminal Appeals for the State of Tennessee, pursuant to
               Rule 37 of the Rules of Criminal Procedure, to wit:

                              Does the setting forth of a specific period of
                       time for the operation of an order declaring a
                       person to be a motor vehicle habitual offender bar
                       the prosecution of that person under T.C.A. §55-
                       10-616 for an offense that occurs after the
                       expiration of the time period specified in such
                       order?

                       Further, as certified by the respective signatures below, the
               Court, the State and the counsel for the defendant are of the opinion
               that the certified question is dispositive of the case.

        On February 25, 2003, the State filed a motion to dismiss the defendant’s appeal on the basis
that the question of law was not properly certified to this court. Because we determined that the
matter should be fully briefed to ensure proper appellate review, we denied the State’s motion by
order entered on March 2, 2004. The State filed its brief subsequently to that order, and both parties
participated in oral argument before this court.



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                                            ANALYSIS

        As a threshold issue, we must first address the State’s contention that the defendant’s MVHO
issue is not properly before this court. Rule 37 of the Tennessee Rules of Criminal Procedure
provides, in pertinent part, that an appeal lies from any judgment of conviction upon a plea of guilty
or nolo contendere if:

                       (i) [T]he 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[.]

Tenn. R. Crim. P. 37(b)(2)(i) (2004). The four specific conditions set forth in subsection (b)(2)(i)
above were part of an amendment to the rule effective July 1, 2002. Id., Advisory Comm’n
Comments. Thus, the amended rule was in effect at the time the judgment was entered in this case.

        In his response to the State’s motion to dismiss and at oral argument, defense counsel
asserted he was unaware of the July 1, 2002, rule change until after the time for filing a notice of
appeal had passed, because his office did not receive an update to the Rules of Criminal Procedure
until the week of October 21 to October 25, 2002. He argued, therefore, that this court should order
the “time for filing enlarged to include the date of the actual filing [of the certified question for
appeal],” pursuant to Rule 45 of the Rules of Criminal Procedure, which provides in pertinent part:

               Enlargement. – When an act is required or allowed to be done at or
               within a specified time, the court for cause shown may at any time in
               its discretion . . . (2) upon motion made after the expiration of the


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               specified time period permit the act to be done if the failure to act was
               the result of excusable neglect[.]

Tenn. R. Crim. P. 45(b)(2).

        The prerequisites for reserving a certified question of law were explained by our supreme
court in State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988):

                       This is an appropriate time for this Court to make explicit to
               the bench and bar exactly what the appellate courts will hereafter
               require as prerequisites to the consideration of the merits of a
               question of law certified pursuant to Tenn. R. Crim. P. 37(b)(2)(i) or
               (iv). 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. . . . 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.

Defense counsel was, therefore, put on notice of these requirements not only by the enactment of the
amendment to Rule 37, which became effective prior to the entry of the defendant’s guilty plea, but
also by the issuance of our supreme court’s Preston opinion in 1988. See Tenn. R. Crim. P. 37,
Advisory Comm’n Comments (stating that “[t]he amendments to subsections (b)(2)(i) and (iv)
specify the requirements for certified question appeals mandated by the Tennessee Supreme Court
in State v. Preston, 759 S.W.2d 647 (Tenn. 1988)”).

        We note that this case differs in an important respect from State v. Armstrong, 126 S.W.3d
908, 908-09 (Tenn. 2003), in which our supreme court concluded that a trial court’s supplemental
order stating the certified question of law for appeal, entered after the filing of the final judgment,
met the Preston requirements for properly certifying a question of law to the appellate court. As in
the case at bar, the defendant in Armstrong entered into a negotiated plea agreement with the State
that was conditioned upon his right to appeal a certified question of law, but the final judgment failed
to contain any statement of the certified question or to reference any other document then in
existence that stated the question. Id. at 909. Two days after the final judgment was filed, the trial


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court entered an “Order Allowing Appeal After Guilty Plea on Certified Question of Law,” which
stated that the defendant was expressly reserving a question of law with the consent of the trial court
and the State, and that both the court and the State were of the opinion that the issue was dispositive
of the case. Id. at 909-10. The order additionally contained a full statement of the question reserved
for appeal. Id. at 909 n.3. There, our supreme court determined that the trial court’s subsequently
filed order of correction met the Preston requirements for certifying a question of law for appeal
because it was filed before the defendant’s filing of his notice of appeal, while the trial court
maintained jurisdiction over the case. Id. at 912. The Armstrong court explained its reasoning:

                          In the present case, the trial court filed a corrective order nunc
                pro tunc two days after the final judgment was entered and before the
                defendant's filing of a notice of appeal. Unlike [State v.] Pendergrass
                [937 S.W.2d 834 (Tenn. 1996)] and [State v.] Irwin, [962 S.W.2d 477
                (Tenn. 1998)] therefore, the remedial action was taken while the trial
                court maintained jurisdiction over the case. Moreover, the corrective
                order entered by the trial court complied with all of the Preston
                requirements: it identified the question of law certified for appeal; it
                stated that the question had been reserved for appeal following the
                defendant’s nolo contendere plea; and it stated that the issue was
                dispositive of the case. See Preston, 759 S.W.2d at 650. Although
                the final judgment itself did not make reference to a certified question
                of law, the corrective order was filed nunc pro tunc to May 22, 2001,
                i.e., the date the final judgments were entered while the trial court had
                jurisdiction in the case to correct omissions or deficiencies in the
                record under Rule 36 of the Tennessee Rules of Criminal Procedure.

Id.

         Here, by contrast, the trial court’ supplemental order was filed after the defendant had already
filed his notice of appeal to this court. Thus, although the defendant’s final judgment referenced an
“amended judgment” to be filed in the future that would contain a statement of the certified question,
the trial court’s subsequently filed “Supplemental Order” cannot serve as a corrective order to rectify
the omissions and defects in the defendant’s judgment. Our supreme court has repeatedly made clear
that the Preston requirements “for appealing a certified question of law under Rule 37 of the
Tennessee Rules of Criminal Procedure [are] ‘explicit and unambiguous.’” Id. at 912 (quoting Irwin,
962 S.W.2d at 479; Pendergrass, 937 S.W.2d at 837). Because the defendant’s judgment form failed
to satisfy the Preston conditions, and the trial court’s “corrective” supplemental order came too late,
we must conclude that the defendant has failed to properly certify his question of law to this court.




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                                       CONCLUSION

        Based on the foregoing, we conclude that the defendant’s question of law is not properly
before this court. Accordingly, we dismiss this case for lack of jurisdiction.


                                                    ___________________________________
                                                    ALAN E. GLENN, JUDGE




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