        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 16, 2014 Session

         STATE OF TENNESSEE v. ALEX HARDIN HUFFSTUTTER

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2011-D-3092     Mark Fishburn, Judge


                No. M2013-02788-CCA-R3-CD - Filed August 28, 2014


The appellant, Alex Hardin Huffstutter, entered a plea of nolo contendre to driving under the
influence (DUI), reserving the following certified question of law concerning whether
Tennessee Code Annotated section 40-35-313 (2007) precludes judicial diversion for a
charge of DUI. The State contends that the question presented is not dispositive and,
therefore, that this court is without jurisdiction to consider the appeal. Upon review of the
record and the parties’ briefs, we agree with the State and conclude that the appeal should
be dismissed.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and A LAN E. G LENN, JJ., joined.

Michael D. Noel, Brentwood, Tennessee, for the appellant, Alex Hardin Huffstutter.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Grove Collins, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        On October 28, 2011, a Davidson County Grand Jury returned indictment number
2011-D-3092, charging the appellant on count 1 with DUI and on count 2 with DUI, per se.
On July 27, 2012, the appellant filed an application for judicial diversion. On April 11, 2013,
the trial court filed a memorandum opinion, denying the application. The trial court, citing
State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993), held that a person convicted of
DUI was ineligible for judicial diversion.
        Thereafter, on February 2, 2013, the appellant entered a plea of nolo contendre to
count 1 in exchange for the dismissal of count 2. As a condition of his plea, the appellant
reserved the following certified question of law: “Does T.C.A. § 40-35-313 (2007)[] exclude
driving under the influence of an intoxicant as prohibited by T.C.A. § 55-10-401 as a type
of offense for which judicial diversion was not available to [the appellant] who was
otherwise qualified for judicial diversion? (Prior to the July 1, 2011 amendment to the
statute).” The trial court, the appellant, and the State agreed that the certified question was
dispositive of the case. However, on appeal, the State contends that the question is not
dispositive. We agree.

      Tennessee Rule of Criminal Procedure 37(b)(2)(A) provides that a certified question
may be reserved when:

              (A) the defendant entered into a plea agreement under Rule
              11(c) 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 order reserving
                     the certified question that is filed before the notice
                     of appeal is filed contains a statement of the
                     certified question of law that the defendant
                     reserved for appellate review;

                     (ii) the question of law as stated in the judgment
                     or order reserving the certified question identifies
                     clearly the scope and limits of the legal issue
                     reserved;

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

                     (iv) the judgment or order reserving the certified
                     question reflects that the defendant, the state, and
                     the trial court are of the opinion that the certified
                     question is dispositive of the case.

See also Tenn. R. Crim. P. 37(b)(2)(D); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988).

                                              -2-
         As we stated earlier, one of the requirements of properly certifying a question of law
is that the defendant, the state, and the trial court agree that the question is dispositive of the
case. State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007). However, this court “‘is not bound
by the determination and agreement of the trial court, a defendant, and the State that a
certified question of law is dispositive of the case’ . . . [and] must make an independent
determination that the certified question is dispositive.” Id. at 134-35 (quoting State v.
Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003)). Generally, a “question is
dispositive when the appellate court must either affirm the judgment [of conviction] or
reverse and dismiss [the charges].” Dailey, 235 S.W.3d at 134 (internal quotations and
citations omitted). “If the appellate court does not agree that the certified question is
dispositive, appellate review should be denied.” Preston, 759 S.W.2d at 651.

       The State argues that even if an offender convicted of DUI were eligible for judicial
diversion, it does not necessarily follow that the appellant is entitled to diversion; therefore,
the question before us is not dispositive. We agree. Regarding pretrial diversion, this court
has previously stated:

                       We cannot see how the propriety of the denial of pretrial
               diversion can ever be the subject of a reserved dispositive
               certified question. In order to be dispositive[,] resolution of the
               certified question presented must leave the appellate court with
               the sole choice of either affirming the trial court or reversing
               and dismissing the case. In the case of the denial of pretrial
               diversion, resolution of the appeal in favor of the defendant
               would not result in dismissal of the case, but rather with the
               defendant’s being placed on diversion.

State v. Robinson, 328 S.W.3d 513, 518 n.2 (Tenn. Crim. App. 2010) (citation omitted).
Likewise, we conclude that the denial of judicial diversion is not dispositive of the case. See
State v. Cutshaw, 967 S.W.2d 332, 343 (Tenn. Crim. App. 1997) (“Tennessee courts have
recognized the similarities between judicial diversion and pretrial diversion and, thus, have
drawn heavily from the case law governing pretrial diversion to analyze cases involving
judicial diversion.”).

        In the instant case, the trial court ruled that the appellant was not entitled to diversion
because he had been convicted of DUI, which precluded eligibility for judicial diversion.
Accordingly, the trial court did not examine the appellant’s qualifications for judicial
diversion. Regardless, if this court were to decide that the appellant, as a DUI offender, was
eligible for judicial diversion, the result would be for us to remand to the trial court for a
determination of the appellant’s qualifications for diversion. This court has previously

                                                -3-
explained, “‘An issue is dispositive when this court must either affirm the judgment or
reverse and dismiss. An issue is never dispositive when we might reverse and remand.” State
v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App. 2000) (quoting State v. Wilkes, 684 S.W.2d
663, 667 (Tenn. Crim. App. 1984)).

      Therefore, because the question of law is not dispositive of the case, the appeal is
dismissed.

                                                  _________________________________
                                                  NORMA McGEE OGLE, JUDGE




                                            -4-
