         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   October 16, 2002 Session

                   STATE OF TENNESSEE v. GARY W. YOUNG

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 2000-B-1055   Steve R. Dozier, Judge



                   No. M2001-02492-CCA-R3-CD - Filed September 2, 2003


On May 21, 2001, the appellant, Gary W. Young, pleaded guilty to sale of a controlled substance and
possession of a controlled substance within a thousand feet of a school. He received concurrent
twenty-one year sentences for each count. As part of the plea agreement the appellant attempted to
reserve a certified question of law to be presented on appeal. See Tenn. R. App. P. 37(b)(2)(i). This
question concerns the propriety of a search. On June 19, 2001, the appellant also attempted to
withdraw his guilty plea pursuant to Tennessee Rule of Criminal Procedure 32(f). The trial court
denied the motion to withdraw the guilty plea based on this Court’s holding in State v. Hall, 983
S.W.2d 710 (Tenn. Crim. App. 1998 overruled by State v. Green, 106 S.W.3d 646 2003)). This
appeal followed. After a review of the record and the applicable authorities we are of the opinion
that the appellant has failed to properly certify an appeal to this Court pursuant to Tennessee Rule
of Appellate Procedure 37(b)(2)(i), and this Court therefore lacks jurisdiction to consider the trial
court’s denial of the appellant’s motion to suppress. However, the appeal of the denied motion to
withdraw a guilty plea is properly before this court, and this case must be remanded for consideration
of the motion in view of the Tennessee Supreme Court decision in State v. Greene, 106 S.W.3d 646
(Tenn. 2003), which overruled State v. Hall. Finally, the allegation concerning the legality of the
appellant’s sentences, which has been raised for the first time on appeal, may be presented to the trial
court on remand for consideration as a ground to allow withdrawal of the plea

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Dismissed in Part and
                           Reversed and Remanded in Part.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for appellant, Gary W. Young.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and John Zimmermann, Assistant District Attorney
General, for appellee, State of Tennessee.
                                                   OPINION

                                                   Background

       This case presents the appeal of a first rate procedural muddle. Fortunately, appellate counsel
has done an excellent job of bringing some order to the chaos by explaining what happened in the
lower court. The following is a chronology of those events provided by appellate counsel:

        On June 12, 2000, the appellant was indicted by a Davidson County grand jury, charging in
count 1 sale of a controlled substance and in count 3 possession of controlled substance for resale
within 1000 feet of a school.1
        On August 11, 2000, the appellant was arraigned in the Criminal Court for Davidson County,
Division I, and, being represented by counsel Glenn Funk, entered a plea of not guilty.
        On October 4, 2000, the appellant filed a motion to suppress evidence, and on October 16,
2000, filed an amended motion to suppress evidence.
        On December 8, 2000, an evidentiary hearing was conducted on the appellant’s motion to
suppress evidence, at the conclusion of which the trial court took the motion under advisement.
        On January 9, 2001, the trial court entered an order denying the appellant’s motion to
suppress.
        On May 21, 2001, the appellant entered a plea of guilty to counts 1 and 3 of the indictment
and received a twenty-one year sentence on each count as a multiple offender. The sentences were
ordered to be served concurrently with one another, and the appellant reserved “the suppression issue
on count 3 for appeal.”
        On May 23, 2001, the appellant’s trial counsel filed a motion to withdraw as counsel and on
that same date, filed a notice of appeal, appealing the trial court’s denial of the appellant’s motion
to suppress evidence.
        On June 1, 2001, the motion to withdraw as counsel filed by Mr. Funk was granted by the
trial court.
        On June 5, 2001, attorney Cynthia Fort was appointed to represent the appellant.
        On June 19, 2001, attorney Cynthia Fort filed on behalf of the appellant a motion to withdraw
guilty plea.
        On August 3, 2001, an evidentiary hearing was held in the trial court on the appellant’s
motion to withdraw guilty plea, at the conclusion of which, the trial court took the motion under
advisement.
        On September 5, 2001, attorney Cynthia Fort filed a Motion to Withdraw as Counsel in the
trial court.
        On September 11, 2001, the motion to withdraw guilty plea was denied by order of the trial
court.
        On September 19, 2001, attorney Cynthia Fort’s motion to withdraw was granted.
        On September 26, 2001, the current appellate counsel was appointed to represent the
appellant.


       1
           Count 2 charged co-defendant Thomas Pedigo with possession of a controlled substance for resale.

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        On October 8, 2001, the appellate counsel filed a notice of appeal, appealing the trial court’s
denial of the appellant’s motion to withdraw guilty plea.
        On February 27, 2002, appellate counsel filed in this Court a motion to correct, modify and
supplement the record, moving this Court to remand the record for certain corrections and to
supplement the record with certain necessary transcripts.
        On April 1, 2002, this Court granted the motion to supplement the record with the requested
transcripts, but denied that portion of the motion which requested a remand to the criminal court for
correction of relevant documents so as to make the appeal of the certified questions conform to the
requirements of Tennessee Rule of Criminal Procedure 32(f) and the case of State v. Preston, 759
S.W.2d 647 (Tenn. 1988). This Court’s order stated in pertinent part:

               The appellant is attempting to appeal a certified question of law
               purportedly reserved during a guilty plea hearing. See T.R.A.P. 3(b);
               Tenn. R. Crim. P. 37(b)(2). The appellate record was filed on
               February 15, 2002. The appellant has not yet filed his brief. The
               appellant suggests in his present motion, however, that the final
               judgment in this case does not comply with the requirements of Rule
               37 and State v. Preston, 759 S.W.2d 647 (Tenn. 1988). Accordingly,
               the appellant requests that this matter be remanded to allow the trial
               court to prepare and include in the record an order or other document
               which complies with the requirements of Preston. The appellant also
               requests that the record be supplemented with transcripts of the
               suppression hearing and the guilty plea hearing.

               Appellant’s request to remand is denied. T.R.A.P. 24(e), which
               governs correction or modification of appellate records, does not
               contemplate the supplementation of appellate records with matters
               that were not part of the trial record prior to the filing of the notice of
               appeal. The appellant in this case seeks to have the record
               supplemented with a document not yet in existence. Moreover, once
               the notice of appeal has been filed, the trial court loses jurisdiction
               over the case. See, e.g., State v. Pendergrass, 937 S.W.2d 834, 837
               (Tenn. 1996).

               However, the court will allow the appellate record to be
               supplemented with the missing transcripts. The transcripts shall be
               prepared and filed as a supplement within thirty (30) days from the
               date of this order. Upon the filing of this supplemental record, the
               appellant will have thirty (30) days in which to file his brief. Absent
               extraordinary circumstances, no additional time will be allowed in
               either instance.




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        Counsel for the appellant and the state have now filed briefs in accordance with the orders
of this Court, and the matter is now before the Court.

              Appeal of Certified Question Pursuant to Tenn. R. Crim. P. 37(b)(2)(i)

        As noted by counsel in the motion to supplement the record, and as the record reflects, the
documents forming the basis of an appeal of a certified question following a plea of guilty pursuant
to Tennessee Rule of Criminal Procedure 37(b)(2)(i) are not sufficient to confer jurisdiction on this
Court to review the denial of appellant’s motion to suppress. The judgment form merely alludes to
an attempt to reserve a certified question concerning the search. The judgment does not contain a
statement that the certified question is dispositive, the reasons upon which the trial court denied the
motion to suppress, a clear statement of the certified question, or a statement that the question is
reserved as part of the plea bargain. There is also no statement in the record that the state and trial
judge agree that the certified question is dispositive. Under these circumstances this court has no
jurisdiction to consider the merits of the issue concerning the denial of the motion to suppress. See
State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996); Preston, 759 S.W.2d at 650. The
purported appeal of a certified question following a guilty plea is therefore dismissed.


               Motion to Withdraw Guilty Plea Pursuant to Tenn. R. Crim. P. 32(f)

       As noted earlier, on June 19, 2001, twenty-nine days following the entry of his guilty pleas
on May 21, 2001, the appellant filed a motion to withdraw his guilty pleas based on Tennessee Rule
of Criminal Procedure 32(f). That rule provides:

                A motion to withdraw a plea of guilty may be made upon a showing
                by the defendant of any fair and just reason only before sentence is
                imposed; but to correct manifest injustice, the court after sentence,
                but before the judgment becomes final, may set aside the judgment of
                conviction and permit the defendant to withdraw the plea.

Tenn. R. Crim. P. 32(f). An appeal of right is available from a denial of a Rule 32(f) motion. See
State v. Peele, 58 S.W.3d 701 (Tenn. 2000). It can readily be seen that the time during which a trial
court has jurisdiction to permit the withdrawal of a guilty plea under Rule 32(f) ends upon the
judgment of conviction becoming final. In State v. Hall, 983 S.W.2d 710 (Tenn. Crim. App. 1998
overruled by State v. Green, 106 S.W.3d 646 (Tenn. 2003)), a panel of this Court held that a
judgment of conviction becomes final immediately upon entry of an agreed plea of guilty
accompanied by a waiver of the right to appeal. See Id. at 711. Relying on Hall, the trial court in
the instant case found that it lacked jurisdiction to entertain the motion to withdraw a guilty plea filed
twenty-nine days after the entry of the plea.

      After the trial court’s denial of the appellant’s motion to withdraw guilty plea the Tennessee
Supreme Court decided the case of State v. Green, 106 S.W.3d 646 (Tenn. 2003). In Green the court


                                                   -4-
overruled State v. Hall and held that rather than becoming final immediately upon entry of a guilty
plea, a judgment of conviction becomes final thirty days after acceptance of the guilty plea. See id.
at *3.

       Thus, it appears that in the instant case the appellant’s motion to withdraw a guilty plea filed
on June 19, 2001, was in fact timely and that the trial court did have jurisdiction to consider the
motion. For this reason we must remand this case to the trial court for consideration of the Rule
32(f) motion on its merits.

                                      Allegedly Void Sentences

        Finally, the appellant with the permission of this Court was allowed to file a supplemental
brief wherein he alleges that his sentences are void because they exceed the maximum term to which
he could be sentenced. Under some circumstances a plea of guilty involving illegal sentences may
invalidate the plea. See, e.g., McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). Rather than address this
issue for the first time on appeal, the appellant should amend his Rule 32(f) motion to withdraw a
guilty plea to include the allegation regarding illegal sentencing. The trial court may then consider
the merits of this claim on remand.

                                             Conclusion

       In light of the foregoing the appeal pursuant to 37(b)(2)(i) is dismissed. However, the
appellant also filed a notice of appeal from the denial of his motion to withdraw a guilty plea filed
pursuant to Tennessee Rule of Criminal Procedure 32(f). That appeal has merit. Accordingly, the
judgment of the trial court is reversed with respect to this issue, and the case is remanded for further
proceedings in accordance with this opinion.



                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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