        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs at Knoxville November 15, 2011

           STATE OF TENNESSEE v. JACOB AARON FAULKNER

                  Appeal from the Criminal Court for Sumner County
                        No. 336-2010 Dee David Gay, Judge


                  No. M2011-00801-CCA-R3-CD - Filed June 1, 2012


The Defendant, Jacob Aaron Faulkner, pled guilty to driving under the influence (DUI), first
offense. Under the terms of the agreement, he received a sentence of eleven months and
twenty-nine days in the county jail, suspended to probation following the service of
forty-eight hours. As part of the plea agreement, the Defendant reserved a certified question
of law challenging the trial court’s denial of his motion to suppress the evidence resulting
from his traffic stop: whether the officer had reasonable suspicion to believe he violated the
“move over law.” After our review of the record, we dismiss the appeal because the
Defendant failed to file a timely notice of appeal and there is no reason justifying waiver of
the filing requirement.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

John Pellegrin, Gallatin, Tennessee, for the appellant, Jacob Aaron Faulkner.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Lawrence Ray Whitley, District Attorney General; William G. Lamberth, II, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION
                                FACTUAL BACKGROUND

        On April 8, 2010, a Sumner County grand jury indicted the Defendant for DUI, DUI
per se, and violating the “move over law.” See Tenn. Code Ann. §§ 55-8-132(b), -10-401(a).
The Defendant filed a motion to suppress all evidence obtained as a result of his traffic stop,
arguing that the police officer who initiated the traffic stop did not have reasonable suspicion
to believe he committed a traffic offense, in this case, a violation of Tennessee Code
Annotated section 55-8-132(b), commonly referred to as the “move over law.”

        During a hearing on the motion, Officer Jason Lance Tolbert, with the Portland Police
Department, testified that around 1:00 a.m. on October 25, 2009, he initiated a traffic stop
of a vehicle traveling east on Highway 52 for possible DUI. The highway had two lanes for
westbound traffic and two lanes for eastbound traffic; the speed limit in the area was forty
miles per hour. According to Officer Tolbert, the shoulder of the road was approximately
three to four feet wide, and after that distance, there was a curb. The stopped vehicle, Officer
Tolbert’s patrol car, and the backup officer’s patrol car were pulled onto the eastbound
shoulder of the highway and were parked in the emergency lane “right next to the yellow
line.” The backup officer’s car was parked behind Officer Tolbert’s car, and Officer
Tolbert’s car was parked behind the stopped vehicle with the front tires of his car angled
towards the road. Officer Tolbert’s emergency lights were flashing.

       Officer Tolbert said that he got out of his patrol car and attempted to approach the
stopped vehicle, accompanied by the backup officer. He looked back at the other officer and
saw a white Chevrolet truck extremely close to that officer’s patrol car. He said to him,
“[H]ey, man, look out, we’re fixing to get run over.” According to Officer Tolbert, the truck
drove by in the lane immediately adjacent to the shoulder of the highway, never attempting
to get over. He said that the truck almost hit him, coming only three to four feet away; he
“could feel the wind off the vehicle.”

       Officer Tolbert radioed ahead to Portland Police Department Officer James Nicholas
Hurt, who was traveling to the east nearby. He informed Officer Hurt of the situation and
requested that he pursue and stop the truck. Officer Hurt did just that. After Officer Tolbert
completed the stop he was on, he proceeded to Officer Hurt’s location. He recognized the
truck as the same vehicle that drove past him and encountered the Defendant as the driver.

       On cross-examination, Officer Tolbert testified that he did not see another vehicle
come by just before the Defendant’s truck. On redirect, Officer Tolbert confirmed that there
were other lanes the Defendant could have moved over into. Upon questioning by the trial
judge, Officer Tolbert stated that his visibility for oncoming traffic was approximately a
quarter to a half of a mile and that there were no obstructions to impede his view. Officer
Tolbert stated that he had been with the Portland Police Department for five years.

        Officer Hurt testified that he received Officer Tolbert’s radio call that morning.
Almost immediately after getting the call, he observed the described truck and initiated a
traffic stop.



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      The Defendant testified that he was pulled over on October 25, 2009, between 1:00
and 1:30 a.m. after consuming several beers that evening. He stipulated that his blood
alcohol content was later determined to be .15 percent following his arrest from this traffic
stop.

        The Defendant disagreed with Officer Tolbert’s version of events. According to the
Defendant, there was no shoulder or emergency lane, and the three vehicles were parked in
the right-hand lane of the highway. He was following behind his wife. Upon seeing the cars
parked in the roadway, he slowed to approximately fifteen to twenty miles per hour and
moved over into the left-hand lane of travel. He testified that he “got as close to the double
yellow lines as [he] could without crossing the double yellow lines.”

         On cross-examination, the Defendant stated that he first saw the cars after going over
a “little crest.” According to the Defendant, he was already in the left-hand lane at that time.

       Upon questioning by the trial judge, the Defendant said that he and his wife were in
two vehicles that evening because they had gotten into an argument. She had also been
drinking, consuming about two beers. He had a “bad night,” and they were going home from
his cousin’s house.

        The Defendant’s wife testified confirming certain details of the Defendant’s version.
She stated that the Defendant was directly behind her when they passed the vehicles stopped
in the right-hand lane of travel. She explained that “there was not enough of a shoulder for
them to really pull off of the road right there.”

        At the conclusion of the hearing, the State argued that Officer Tolbert properly
stopped the Defendant because he came very close to the officers and did not pass safely.
The defense argued that no traffic violation occurred because the evidence showed the
Defendant slowed down and maintained his travel in the left-hand lane. The trial court ruled
that the stop was proper, reasoning as follows:

       This is a factual basis and just factual determination here on what the facts are.
       ...

       ....

               So I think the testimony is clear here under the highway that we’ve got,
       it’s four lanes. If we’ve got a vehicle over in the right hand lane that has been
       stopped, and we have emergency lights on without any impending traffic, the



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        driver approaching this particular situation should be free to move over into
        the next lane.

               Now, [the Defendant] testified and one thing that I consider is the fact
        that he said he had eight or nine beers. He said he’s had a bad night and I
        consider that when he testified. It’s interesting that the officer never saw the
        wife drive by and I don’t understand that particular situation.

               However, Officer Tolbert who’s got five years of experience, was
        particularly credible and I give credit to his testimony. Five years serving on
        the Portland Police Department at 1:30 in the morning he’s got this vehicle
        stopped on the side of the road. And he was very specific . . . as to where the
        vehicle was located, where his vehicle was located, the turn of the front of the
        vehicles, the terrain in the area, and so forth.

                And he said this vehicle was stopped and he saw the [D]efendant’s
        vehicle coming and it came very close. Particularly important I think is the
        fact that this was so close, more so than others that he let slide by. He said that
        he could feel the air from the vehicle and that is just too close under these
        circumstances.

                By the grace of God this officer was not hurt and the [D]efendant was
        not hurt. I give much credibility to Officer Tolbert. I do not give credibility
        to the [D]efendant or the [D]efendant’s wife under those circumstances.

        The Defendant filed a motion to amend the record and for a rehearing. The Defendant
first noted that the officers testified that “there was ample room, over three feet,” on the
shoulder of the highway, allowing them to “be entirely out of the right-hand lane of traffic.”
The Defendant then alleged that he had obtained “additional evidence and measurements
concerning the roadway and the shoulder . . . essential to understanding the facts behind the
traffic stop in question” and which disputed the officers’ testimony. The trial court denied
the motion but permitted the Defendant to make an offer of proof. Those collective
photographs are a part of the record on appeal.

      Thereafter, the Defendant pled guilty to DUI, and the “move over law” charge was
dismissed.1 Under the terms of the agreement, he received a sentence of eleven months,



1
  Neither a transcript of the plea hearing nor a copy of the plea agreement are included in the record on
appeal.

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twenty-nine days, to be served as forty-eight hours in jail and the remainder on probation.
The judgment was filed on February 14, 2011.

       As part of his plea, the Defendant, pursuant to Rule 37(b)(2)(A) of the Tennessee
Rules of Criminal Procedure, attempted to reserve the right to appeal a certified question of
law dispositive of the case. The judgment of conviction form contained the following
notation within the special conditions section: “Defendant plead guilty pursuant to appeal.”
An agreed order was filed on March 7, 2011. In the order, which is signed by both parties
and the trial judge, the Defendant first recounted the procedural history of the case and then
reserved the following question: “whether or not, under the facts in this case, the Defendant
could have violated T.C.A. 55-8-132, commonly referred to as Tennessee’s ‘move-over law’,
thus giving the police sufficient reason to make a traffic stop on the Defendant.” The
Defendant filed his notice of appeal document on April 6, 2011.

                                         ANALYSIS

       The Defendant contends that the trial court erred by denying his motion to suppress
because Officer Tolbert had no reasonable suspicion to stop him since he was in the left-hand
lane of travel, slowed down, and “eased his vehicle over within his lane of travel.” Relying
on the collective photographs he submitted as an offer proof, he “implore[s]” this court to
conclude that Officer Tolbert’s version “is a physical impossibility and . . . should not be
given credence.” Initially, the State responds that the Defendant’s case should be dismissed
because he failed to file a timely notice of appeal. The State further responds that the trial
court properly denied the Defendant’s motion to suppress because Officer Tolbert had
reasonable suspicion that the Defendant violated the move over law. Additionally, the State
contends that the photographs are not properly before this court for our review, noting that
the Defendant has not challenged the trial court’s refusal to accept said photographs.

        First, we agree with the State that the notice of appeal document was untimely.
Pursuant to Tennessee Rule of Appellate Procedure 4(a), a notice of appeal “shall be filed
with and received by the clerk of the trial court within 30 days after the date of entry of the
judgment appealed from.” Tenn. R. App. P. 4(a). The judgment in this case was filed on
February 14, 2011; however, the notice of appeal was not filed until April 6, 2011, more than
thirty days after the judgment was filed.

        We acknowledge that the untimely filing of a notice of appeal is not always fatal to
an appeal. State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). Rule 4(a)
states that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional and the
filing of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a).
“‘In determining whether waiver is appropriate, this court will consider the nature of the

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issues presented for review, the reasons for and the length of the delay in seeking relief, and
any other relevant factors presented in the particular case.’” Rockwell, 280 S.W.3d at 214
(quoting State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415,
at *1 (Tenn. Crim. App. Dec. 27, 2005)). Waiver is not automatic and should only occur
when “the interest of justice” mandates waiver. Id. If this court were to summarily grant a
waiver whenever confronted with untimely notices, the thirty-day requirement of Tennessee
Rule of Appellate Procedure 4(a) would be rendered a legal fiction. Id. (citing Michelle
Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *1 (Tenn. Crim. App.
Feb. 13, 1996)).

        The Defendant has not provided this court with any explanation or discussion
regarding the untimely filing of the notice of appeal. See Rockwell, 280 S.W.3d at 214. In
his notice of appeal, the Defendant asserts that he is appealing from the agreed order filed
on March 7, 2011. However, although the trial court had jurisdiction to enter the agreed
order prior to the filing of the notice of appeal document, the filing of that order did not toll
the thirty-day requirement for filing the notice of appeal. See Tenn. R. App. P. 4(c) (listing
the motions or petitions that toll the time for filing a notice of appeal); Tenn. R. Crim. P.
37(b)(2)(A)(i) (noting that the judgment or order reserving the question is “filed before the
notice of appeal”).

       Moreover, waiver is not mandated because the Defendant has failed to comply with
the procedural requirements for reserving a certified question. Tennessee Rules of Criminal
Procedure 37(b)(2)(A) provides that a defendant may appeal from any judgment of
conviction on a plea of guilty or nolo contendere, if:

        (A) the defendant entered into a plea agreement under Rule 11(a)(3) 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:

        (i) the judgment of conviction or other document to which such judgment
        refers2 that is filed before the notice of appeal, contains a statement of the

2
 Effective July 1, 2011, this portion of the rule was amended and now provides, “the judgment of conviction
or order reserving the certified question[.]” See Tenn. R. Crim. P. 37, Compiler’s Notes. The Advisory
Commission Comment to the amendment provides as follows:

        The amendment to Rule 37(b)(2)(A) addresses those cases where the certified question of
        law is not stated in the judgment. In such cases, the amendment removes the requirement
        that a separate document setting forth the certified question of law be incorporated by
                                                                                           (continued...)

                                                   -6-
           certified question of law that the defendant reserved for appellate review;

           (ii) the question of law is stated in the judgment or document so as to identify
           clearly the scope and limits of the legal issue reserved;

           (iii) the judgment or document reflects that the certified question was expressly
           reserved with the consent of the state and the trial court; and

           (iv) the judgment or document reflects that the defendant, the state, 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)(i)-(iv) (2010) (emphasis added); see also State v. Armstrong,
126 S.W.3d 908, 912 (Tenn. 2003); State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn.
1996); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The burden is on the defendant
to see that these prerequisites are in the final order and that the record brought to the
appellate court contains all of the proceedings below that bear upon whether the certified
question of law is dispositive and the merits of the question certified. Pendergrass, 937
S.W.2d at 837. Because of the dispensatory nature of a certified question appeal, our
supreme court firmly rejected a rule of substantial compliance, see Armstrong, 126 S.W.3d
at 912, and instead demanded strict adherence to Rule 37(b), as that rule has been amplified
by the court itself.

        Rule 37, as is applicable to this case, permits the review of a certified question of law
in instances where the “other document to which [a] judgment refers that is filed before the
notice of appeal” otherwise satisfies the requirements of the rule. See also State v. Irwin, 962
S.W.2d 477, 479 (Tenn. 1998) (acknowledging that a separate document that comports with
Rule 37 requirements will afford this court jurisdiction so long as the document is
incorporated into the judgment). However, the February 14, 2011 judgment of conviction
in this case contained only the following notation within the special conditions section:
“Defendant plead guilty pursuant to appeal.” The agreed order specifying the certified
question was not filed until March 7, 2011. The judgment failed to incorporate by reference
the separate order filed three weeks later, which failure renders this court without jurisdiction

2
    (...continued)
            reference in the judgment, and it allows the requirements of the Rule to be met by an order
            entered by the trial court certifying the question.

Tenn. R. Crim. P., Advisory Comm’n Cmts. 2011. However, this appeal is governed by the rule in effect at
the time the question was certified. See State v. Deangelo M. Radley, No. M2011-00165-CCA-R3-CD, 2011
WL 4695652, at *3 (Tenn. Crim. App. Oct. 7, 2011), perm. app. filed, (Tenn. Dec. 6, 2011).

                                                       -7-
to review this appeal. See State v. Deangelo M. Radley, No. M2011-00165-CCA-R3-CD,
2011 WL 4695652, at *3 (Tenn. Crim. App. Oct. 7, 2011) (citing State v. Rickey Clayton
Rogers, M2009-02377-CCA-R3-CD, 2011 WL 795753, at *1 (Tenn. Crim. App. Mar. 8,
2011) (holding that “it is not sufficient that the ‘other document’ contains all the required
information[;] . . . the judgment must refer to the ‘other document’ which contains the
necessary information”); State v. Curtis Emmanuel Lane, E2004-02340-CCA-R3-CD, 2005
WL 2862972, at *3-4 (Tenn. Crim. App. Nov. 11, 2005) (holding that addendum sufficiently
setting forth Rule 37 requirements filed on the same date as judgment did not afford this
court jurisdiction when judgment did not incorporate by reference the addendum), perm. app.
denied, (Tenn. Mar. 2, 2006)), perm. app. filed, (Tenn. Dec. 6, 2011).

                                      CONCLUSION

        Having concluded that the interest of justice does not require a waiver of the timely
filing of the notice of appeal, the appeal is dismissed.




                                                   ________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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