         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 21, 2004 Session

               STATE OF TENNESSEE v. MELISSA A. SIMMONS

                 Direct Appeal from the Criminal Court for Putnam County
                             No. 03-0180 Leon Burns, Judge



                   No. M2003-03064-CCA-R3-CD - Filed Februray 23, 2005


The Defendant, Melissa Simmons, pled guilty to driving under the influence, first offense, a Class
A misdemeanor. As part of the plea agreement, she intended to reserve the right to appeal a certified
question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). Because the
judgment form failed to comply with the strict requirements of Rule 37(b)(2), Defendant did not
properly reserve a certified issue for review. As a result, we are without jurisdiction to review the
merits of Defendant's claim, and accordingly dismiss her appeal.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH, JJ., joined.

William A. Cameron, Cookeville, Tennessee, for the appellant, Melissa A. Simmons.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William Edward Gibson, District Attorney General; and Thomas Tansil, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                             OPINION

        On December 1, 2002, pursuant to an investigation into an alleged domestic disturbance, a
Cookeville police officer stopped the car Defendant was driving. The officer subsequently
determined that Defendant was intoxicated and placed her under arrest for driving under the
influence (DUI). The Putnam County Grand Jury returned an indictment charging Defendant with
DUI. Defendant filed a motion to suppress all evidence obtained as a result of the stop, claiming that
the officer's stop was in violation of her constitutional rights. The trial court overruled Defendant's
motion after hearing testimony from the arresting officer and the arguments of counsel.

      We note the following procedural history of this case from the technical record. On
September 5, 2003, Defendant executed a standard "Plea of Guilty and Waivers of Jury Trial and of
Appeal" to DUI first offense. This document was signed by Judge Lillie Ann Sells, as well as by
Defendant, her counsel, and an assistant district attorney. The document, insofar as it pertains to a
certified question of law on appeal, has a handwritten notation of "Reserves Issue of Stop Motion
for appeal." Also on September 5, 2003, an order was signed by Judge Sells and filed with the clerk,
stating that the Defendant reserves "the issue of whether the officer had a right to stop the vehicle
and had specific and articulable facts in order to pull the vehicle that the Defendant was in over and
conduct an investigation which led to the arrest of the Defendant." The order reflects that Defendant
"entered a plea of guilty to" DUI. The order reflects that the "parties" agreed that the suppression
issue was dispositive of the case. However, no judgment is in the record reflecting a guilty plea on
September 5, 2003.

       The next document in the technical record is an order signed by Judge Leon C. Burns, Jr.,
which was filed November 7, 2003. Judge Burns had previously denied the motion to suppress filed
on behalf of Defendant. The November 7, 2003, order contains the following language:

       The Defendant accepts [sic] the overruling of the Motion to Suppress and the State
       of Tennessee agrees that had the Motion to Suppress been granted the State would
       have had to dismiss the case there being insufficient evidence to sustain a conviction
       and that if the Motion to Suppress had been granted it would have been dispositive
       of the case in the Defendant's favor. Thereafter, the Defendant entered a plea of
       guilty reserving the right to contest the ruling on the Motion to Suppress in the
       Criminal Court of Appeals for the Middle District of Tennessee.

        Another standard form, "Plea of Guilty and Waivers of Jury Trial and of Appeal" was
executed and filed on November 7, 2003. This document was signed by Defendant, her counsel,
the assistant district attorney, and Judge Burns and included a handwritten notation: "Reservation
of Right to appeal on Stop issue." Subsequently, a judgment was signed by the judge and the
assistant district attorney general with an indication that the date of entry of the judgment was
"11/14/03." However, this document was not filed by the court clerk until November 18, 2003. The
judgment reflects that Defendant pled guilty to DUI on November 7, 2003 and received a sentence
of eleven months and twenty-nine days in the Putnam County Jail, with all suspended but forty-eight
hours, and probation to be served for the balance of the sentence. The guilty plea agreement
encompassed the offense to which Defendant was pleading guilty and the entire punishment.
Therefore, it was a plea pursuant to Rule 11(e)(1)(C) of the Tennessee Rules of Criminal Procedure.
Under the "special conditions" portion of the judgment, it states that "[t]he balance of sentence is
suspended on payment of fine and costs and completion of Alcohol Safety Education Program. Her
driver's license is suspended for one (1) year." There is no mention anywhere on the judgment that
this was a guilty plea reserving the right to appeal a certified question of law. There is nothing in
the judgment which refers to or incorporates either the order entered and signed by Judge Sells on
September 5, 2003 or the order signed by Judge Burns and filed November 7, 2003.

        While the transcript of the suppression motion is included in the record, the transcript of the
guilty plea submission hearing is not in the record.


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        In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), the Supreme Court of Tennessee mandated
certain specific requirements for certified questions of law to be pursued on appeal following a guilty
plea. Thus, Preston was filed approximately fifteen years prior to Defendant's guilty plea in
November 2003. In addition, effective July 1, 2002, Rule 37 of the Tennessee Rules of Criminal
Procedure was amended in subsection (b) to specifically set forth the Preston requirements.

      Thus, at the time of Defendant's plea of guilty, Rule 37 of the Tennessee Rules of Criminal
Procedure provided in part as follows:

              Rule 37. Appeal.— (a) Definition of an Appeal. — Direct appellate review
       available as a matter of right is herein called an appeal and embraces appeals in the
       nature of writs of error and all other direct appeals in criminal cases.
              (b) When an Appeal Lies. — 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:
                    (1) Upon a plea of guilty; or
                    (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 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; or

Tenn. R. Crim. P. 37(b)(2) (emphasis added).

        As stated above, nothing in the judgment of conviction from which Defendant appeals
complies with any of the Preston requirements as set forth in Rule 37(b). The only possible
language in the order entered on November 7, 2003, which could even arguably be a "statement of
the certified question of law reserved by Defendant for appellate review" which might "identify
clearly the scope and limit of the legal issue reserved" is the following:



                                                 -3-
        Come the parties . . . and would state that on July 9, 2003 a motion was filed for the
        Defendant attacking the stop made by the prosecutor [sic] in this case of the
        Defendant without specific or articulable facts sufficient to warrant a warrantless stop
        of the Defendant and the subsequent investigation into her sobriety.

        We need not make a determination, however, whether this statement meets the requirements
of Preston and Rule 37(b), because neither the judgment of conviction nor the order previously
entered at the time of the guilty plea specifically reflects that Defendant had the consent of the court
to appeal a certified question of law that is dispositive of the case. While the consent of the State
is evident, there is nothing at all in any of the documents to show that the certified question was
"expressly reserved with the consent of . . . the trial judge" or that "the trial judge [is] of the opinion
that the certified question is dispositive of the case." Tenn. R. Crim. P. 37(b)(2)(i)(C) and (D).

        The case sub judice is not a situation like that found in State v. Armstrong, 126 S.W.3d 908
(Tenn. 2003). In Armstrong, a judgment which was deficient under Preston standards was corrected
by a subsequently filed nunc pro tunc order which was entered prior to the notice of appeal being
filed, and therefore, within the time period that the trial court still had jurisdiction to correct any
errors.

        In the case sub judice, the order and judgment were both filed prior to the notice of appeal,
but the deficiencies in the Preston requirements have never been corrected, and cannot be done so
now by the trial court.

        Accordingly, this Court has no choice other than to dismiss this appeal.

                                            CONCLUSION

        Based upon the foregoing, this appeal is dismissed.

                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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