         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 11, 2007

                   STATE OF TENNESSEE v. FAITH WHITLEY

                  Direct Appeal from the Circuit Court for McNairy County
                            No. 2052     Weber McCraw, Judge



                  No. W2006-02595-CCA-R3-CD - Filed February 19, 2008


Faith Whitley, the defendant, was indicted for possession with intent to deliver over one-half ounce
of marijuana, a Class E felony. After a motion to suppress was heard and denied, the defendant
entered a guilty plea with an agreed sentence of one year on probation and a fine of $2000. The
judgment purported to reserve certified questions of law pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2). After review, we conclude that the defendant has failed to comply with the strict
requirements of Tennessee Rule of Criminal Procedure 37(b)(2). The appeal is dismissed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN , JJ., joined.

James N. Adams, Jr., Corinth, Mississippi, for the appellant, Faith Whitley.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
D. Michael Dunavant, District Attorney General; and Cameron Williams, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        This case originated with a traffic stop of the defendant for her failure to wear a seat belt.
The arresting officer alleged that he obtained consent to search the defendant’s vehicle and her
person. More than one-half ounce of marijuana was found in the defendant’s jacket pockets. After
the defendant’s motion to suppress was denied, the defendant entered a guilty plea to the indicted
charge with the judgment reflecting the reservation of certified questions of law pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2). The State contends that the appeal is not properly
before this court because the questions certified were not ruled upon by the trial judge, in violation
of State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The State also argues that the search was
consensual and valid.
       Our review indicates that the attempt to reserve the certified questions failed for reasons
contained in this opinion. As a result, we are compelled to dismiss the appeal.

                                         Suppression Hearing

        Byron Maxedon, the arresting officer, was the only witness at the hearing of the defendant’s
motion to suppress. On the date of the arrest, December 16, 2005, Officer Maxedon was employed
by the Selmer Police Department and was assigned to the West Tennessee Judicial Task Force. He
stated that his primary focus was the investigation of illegal drug traffic and that he did not ordinarily
deal with traffic offenses. Officer Maxedon met the defendant on a rural road after observing her
pull out from a driveway on private property. The defendant was alone in her vehicle, and no other
individual or vehicle was noted in the area. The officer stated that he knew the area had been used
for drug transactions in the past. After observing that the defendant was not wearing a seat belt, the
officer reversed his course, approached the defendant’s vehicle from the rear, and activated his blue
lights.

        Officer Maxedon went to the defendant’s vehicle and, after informing her of the reason for
the stop, asked her for identification. The defendant produced a driver’s license which the officer
then checked through his communications for the validity of the license. After confirming that the
license was valid and that there were no outstanding warrants against the defendant, the officer
returned to the defendant in her vehicle. He asked the defendant if the vehicle contained “any illegal
drugs, narcotics, hand grenades, bombs, guns, anything in the vehicle that shouldn’t be in the
vehicle.” On cross-examination, the officer said his question to the defendant included whether there
were “drugs, guns, knives, needles.” The defendant made it known to Officer Maxedon that she did
not want the vehicle searched. The officer then proceeded to tell the defendant it would only take
a few minutes and, if nothing was found, she would be free to go. The defendant then appeared to
the officer to give her consent. He asked the defendant to step out of the car. The officer stated he
had not detected any odor of drugs and the defendant did not appear to be under the influence of an
intoxicant. He said he had known the defendant a “long time” and did not fear her but, out of
precaution, decided to pat her for weapons. He asked if she minded if he looked to see if she had
anything on her. The defendant extended her arms and made a nodding motion with her head. The
officer felt a hard, round, ball-like object in her jacket pocket which he thought might be a weapon.
Upon closer inspection, he saw it was a compressed leafy substance that proved to be marijuana.
Another bag was discovered in the opposite pocket. The defendant was then arrested and
handcuffed. The officer’s subsequent search of the vehicle revealed no contraband. The officer
stated that he seized the vehicle and approximately $800 from the defendant’s purse.

       The Affidavit of Complaint, as filed by Officer Maxedon in General Sessions Court, is
included in the record and purports to state “the essential facts constituting the offense(s)” as
follows:
       On the date above, [December 16, 2005] I stopped the above subject on Connie
       Smith Road because I observed her on private property with clearly marked “No
       Trespassing Signs.” I had previous knowledge that the owner did not want anyone


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       on the property. I stopped Ms. Whitley and gained consent to search. During the pat
       down, I located approximately 2 ounces of marijuana in Ms. Whitley’s jacket, $750
       in cash was also found in her purse inside the vehicle. She was arrested and
       transported to the McNairy County Jail.

       The affidavit was duly sworn to by Officer Maxedon before a clerk/judicial commissioner
on January 4, 2006.

         The trial judge denied the motion to suppress and issued findings from the bench. He ruled
that the violation of the seatbelt law provided a valid reason for the traffic stop, which he stated was
not pretextual. The trial judge further ruled that valid consent was granted to search the vehicle and,
later, the defendant’s person. In addition, the limited search of the defendant’s person was valid due
to the officer’s reasonable suspicion and for his personal safety. The trial judge later issued a more
detailed written Order Denying Suppression of Evidence. The Order’s findings of fact and
conclusions of law essentially reiterated the bench denial but referred to the stop as “somewhat
pretextual.”

                                               Analysis

       The reservation of a certified question of law for appellate review is governed by Tennessee
Rule of Criminal Procedure 37(b)(2), which 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:
       ....
       (2) Upon a plea of guilty or nolo contendere if:
           (I) 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 the 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)(A)-(D).



                                                  -3-
        Our supreme court in State v. Preston, 759 S.W.2d 647 (Tenn. 1988), stated its intention to
“make explicit to the bench and bar” the prerequisites for appellate consideration on the merits of
an appeal under Tennessee Rule of Criminal Procedure 37(b)(2). The requirements are that the final
order or judgment appealed from contain a statement of the dispositive question of law reserved for
review. The question must be stated so as to clearly identify the scope and limits of the legal issue
and must have been passed upon by the trial judge. The order must also state that the certified
question was reserved and that the State, trial judge, and defendant consented and that all were of
the opinion that it was dispositive of the case. The defendant bears the burden of satisfying these
prerequisites. Id. at 650.

         It is permissible to comply with these requirements in a separate document if such document
is clearly referred to or incorporated by reference into the judgment. State v. Irwin, 962 S.W.2d 477,
479 (Tenn. 1998). However, substantial compliance with Preston is not sufficient to acquire
appellate review of the certified question. State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003).

        This court has consistently and repeatedly held that the Preston requirements are
jurisdictional. See State v. Long, 159 S.W.3d 885, 887 (Tenn. Crim. App. 2004); State v. Boyd, 51
S.W.3d 206, 210 (Tenn. Crim. App. 2000); State v. Scott Eric McDonald, No. E2006-02568-CCA-
R3-CD, 2007 Tenn. Crim. App. LEXIS 950 (Tenn. Crim. App. at Knoxville, Dec. 20, 2007); State
v. Christian Fernandez, No. E2006-01781-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 825 (Tenn.
Crim. App. at Knoxville, Oct. 23, 2007); State v. Pamela A. Inghram, No. M2006-00818-CCA-R3-
CD, 2007 Tenn. Crim. App. LEXIS 555 (Tenn. Crim. App. at Nashville, July 11, 2007); State v.
Christopher Christie, No. M2006-00612-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 44 (Tenn.
Crim. App. at Nashville, Jan. 18, 2007); State v. Festus Babundo, No. E2005-02490-CCA-R3-CD,
2007 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. at Knoxville, May 25, 2006); State v. Kevin
Bufford, No. M2004-00536-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App.
at Nashville, June 24, 2005); State v. Alaric Crouch, No. 01C01-9906-CC-00216, 2000 Tenn. Crim.
App. LEXIS 50 (Tenn. Crim. App. at Nashville, Jan. 18, 2000); State v. Stuart Jenkins, No. 01C01-
9712-CR-00590, 1998 Tenn. Crim. App. LEXIS 1304 (Tenn. Crim. App. at Nashville, Dec. 21,
1998); State v. Charlotte Little, No. 03C01-9504-CR-00113, 1996 Tenn. Crim. App. LEXIS 44
(Tenn. Crim. App. at Knoxville, Jan. 30, 1996); State v. Charles R. Sanders, No. 01C01-9312-CC-
00420, 1994 Tenn. Crim. App. LEXIS 449 (Tenn. Crim. App. at Nashville, July 21, 1994).

        In the case at hand, the defendant failed to comply with the Preston requirements. The only
reference on the judgment form to a certified question is in the following verbatim form: “Reserve
cert question of law (1) did the stop become unreasonable and thereby unconstitutional when it lasted
longer1 to effectuate the reason for the stop (2) was the search consensual (3) was the officer search
of Defendants person constitutional.” The judgment bears only the signature of the trial judge.




         1
           The words “than necessary” contained in the separate order are omitted on the judgment form. This omission
deprives the issue of clarity.

                                                        -4-
      A separate order recites the defendant’s entry of a guilty plea pursuant to Tennessee Rule of
Criminal Procedure 37(b)(2)(i). The order, signed only by the trial judge, sets forth the sentence
imposed and the following language:
              With the consent of the Court and the State the defendant’s plea explicitly
      reserved the right to appeal a certified question of law that the Court, the State and
      the Defendant agree is dispositive of the case, to wit:
              1. On July 25, 2006, the defendant filed a motion to suppress the marijuana
      recovered in the search raising issues which are incorporated by reference herein. On
      October 11, 2006, the court denied the motion, finding the search of the defendant
      to be valid. The issues certified are: (1) Did the stop become unreasonable and
      thereby unconstitutional when it lasted longer than necessary to effectuate the reason
      for the stop? (2) Was the search consensual? (3) Was the Officers’ search of
      Defendant’s person constitutional?

         The final judgment of conviction does not refer to or incorporate any document. The
judgment is that which is appealed and it is ineffectual in the application of Rule 37(b)(2) as
amplified by the dictates of Preston. The recital of certified questions of law alone, without further
referral or incorporation to a conforming document containing the requisite language, deprives this
court of jurisdiction. We take no satisfaction in the dismissal of this or the many other failed Rule
37(b)(2) appeals. The growing trail of failed appeals of this type bears witness to a lack of
understanding by the bar of the strict adherence required in pursuing a Rule 37(b)(2) review.
However, we reiterate that Preston and Tennessee Rule of Criminal Procedure 37(b)(2) “have
defined a bright-line rule from which this court may not depart.” Christopher Christie, 2007 Tenn.
Crim. App. LEXIS 44, at *11. It would be our preference to review the legitimate certified questions
on the merits, but we cannot assume jurisdiction where it is denied due to failures in meeting the
strict prerequisites.

                                             Conclusion

       For the foregoing reasons, we conclude that the proposed certified questions were not
properly reserved. Accordingly, we dismiss the appeal for lack of jurisdiction.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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