            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  Assigned on Briefs July 17, 2007

                    STATE OF TENNESSEE v. MICHAEL R. KING

                         Appeal from the Circuit Court for Dickson County
                             No. CR7813      George C. Sexton, Judge



                     No. M2006-01932-CCA-R3-CD - Filed September 28, 2007


The defendant, Michael R. King, was indicted by the Dickson County Circuit Court Grand Jury on
two counts of driving under the influence of an intoxicant (DUI), second offense. See T.C.A. §§ 55-
10-401, -403(a)(1) (2004). He moved to suppress the results of his blood alcohol test. Following
the circuit court’s denial of the motion, a plea agreement resulted in a nolle presequi of count one
(DUI), a guilty plea to count two (DUI per se, see id. § 55-10-401(a)(2)), and the reservation of a
certified question of law: “Whether the trial court erred following a suppression hearing held on July
10, 2006, that the results of the Defendant’s blood alcohol test may be admitted into evidence?”
Because the certified question was not properly reserved for review, we dismiss the appeal.

                                 Tenn. R. App. P. 3; Appeal Dismissed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JERRY L. SMITH , J.,
joined. JOSEPH M. TIPTON , P.J., filed a separate concurring opinion.

Timothy V. Potter, Dickson, Tennessee, for the appellant, Michael R. King.

Robert E. Cooper, Jr., Attorney General & Reporter; and Mark A. Fulks, Assistant Attorney General,
for the appellee, State of Tennessee.

                                                   OPINION

                At the suppression hearing, the prosecutor and defense counsel apparently agreed
that, following a December 16, 2004 automobile accident, the defendant had been transported to the
hospital, where treating medical personnel drew blood from the unconscious defendant for use in
chemical tests, including a blood alcohol analysis. The State claimed that no law enforcement agent
requested a blood alcohol test on the defendant.1 The prosecutor, however, announced that he had


        1
          See T.C.A. § 55-10-406(b) (“Any person who is unconscious as a result of an accident or is unconscious at
the time of arrest or apprehension or otherwise in a condition rendering that person incapable of refusal, shall be
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no witnesses to present in opposition to the motion to suppress. The defense rejoined, “[I]t might
very well be the case [that no law enforcement agent requested the test]. We argue that it’s not [the
case;] . . . the burden of proof . . . is on the State.”

               The defendant then testified in the suppression hearing that he was rendered
unconscious in an automobile accident on December 16, 2004. He was taken to the hospital and was
unaware that his blood was drawn. He was allowed to leave the hospital but was subsequently
charged with DUI. The defendant admitted that, when he woke up in the hospital, no law
enforcement officers were present.

                Following this testimony, the defense again argued that “the burden is on the State
to show that that blood was drawn from his body for other than law enforcement purposes. It’s not
[the defendant’s] job to argue and disprove a negative. He’s unconscious.” The defendant also
argued that the extraction of the blood and/or the use of the test report violated statutory and
constitutional standards.

                 Following argument, the circuit judge stated, “[T]he initial burden in a warrantless
search is upon the defendant to establish that there was a search. The defendant has failed to
establish there was any search in this case because they haven’t established there was any State
action . . . .” Based upon that holding, the court overruled the motion to suppress.

                 The ensuing plea agreement resulted in a judgment of guilty of DUI per se and an
order that specified the reservation of a certified question of law. The judgment stated, “Certified
Question: Whether the trial court erred following a suppression hearing held on July 10, 2006, that
the results of the Defendant’s blood alcohol test may be admitted into evidence?” The separate order
similarly stated the certified question.

               Reserving a certified question of law for appellate review is governed by Rule
37(b)(2) of the Tennessee Rules of Criminal Procedure, 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:

                            ....



                            1
                                (...continued)
subjected to the test or tests as provided for by §§ 55-10-405 to -412, but the results thereof shall not be used in evidence
against that person in any court or before any regulatory body without the consent of the person so tested . . . .”), (e)
(“Provided probable cause exists for criminal prosecution for the offense of driving under the influence of an intoxicant
under § 55-10-401, nothing in this section shall affect the admissibility into evidence in a criminal prosecution of any
chemical analysis of the alcohol or drug content of the defendant’s blood that has been obtained while the defendant was
hospitalized or otherwise receiving medical care in the ordinary course of medical treatment.”).

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               (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).

                As in any other appeal before this court, our first concern is whether this court is
authorized to hear the case. Jurisdiction to hear a direct appeal following a guilty plea generally must
be predicated upon the provisions for reserving a certified question of law. “Appeals of certified
questions of law run counter to the general rule that a defendant enjoys no right of appeal following
a guilty plea.” State v. Festus Babundo, No. E2005-02490-CCA-R3-CD, slip op. at 3 (Tenn. Crim.
App., Knoxville, May 26, 2006); compare Tenn. R. Crim. P. 37(b)(1) with id. 37(b)(2).

                Because of the dispensatory nature of a certified question appeal, our supreme court
firmly rejected a rule of substantial compliance, see State v. Armstrong, 126 S.W.3d 908, 912 (Tenn.
2003), and instead demanded strict adherence to Rule 37(b), as that rule has been amplified by the
court itself. For instance, in State v. Pendergrass, our supreme court “emphasized” that

               [r]egardless of what appeared in prior petitions, orders, colloquy in
               open court or otherwise, the final order or judgment from which the
               time begins to run to pursue a T.R.A.P. 3 appeal must contain a
               statement of the dispositive certified question of law reserved by
               defendant for appellate review, and the question of law must be stated


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               so as to clearly identify the scope and the limits of the legal issue
               reserved. For example, where questions of law involve the validity
               of searches and the admissibility of statements and confessions, etc.,
               the reasons relied upon by defendant in the trial court at the
               suppression hearing must be identified in the statement of the
               certified question of law[,] and review by the appellate courts will be
               limited to those passed upon by the trial judge and stated in the
               certified question, absent a constitutional requirement otherwise.
               Without an explicit statement of the certified question, neither the
               defendant, the State nor the trial judge can make a meaningful
               determination of whether the issue sought to be reviewed is
               dispositive of the case. . . . Also, the order must state that the certified
               question was expressly reserved as part of the plea agreement, that the
               State and the trial judge consented to the reservation and that the
               State and the trial judge are of the opinion that the question is
               dispositive of the case. Of course, the burden is on defendant to see
               . . . that the record brought to the appellate courts contains all of the
               proceedings below that bear upon whether the certified question of
               law is dispositive and the merits of the question certified. No issue
               beyond the scope of the certified question will be considered.

State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996) (quoting State v. Preston, 759 S.W.2d
647, 650 (Tenn. 1988)) (emphasis supplied in Pendergrass); see State v. Lillie Fran Ferguson, No.
W2000-01687-CCA-R3-CD, slip op. at 4-5 (Tenn. Crim. App., Jackson, Apr. 27, 2001) (lamenting
general, widespread failure to comply with Preston-Pendergrass and citing cases in which court of
criminal appeals has dismissed certified-question appeals).

                This court has said that, given the mandate for strict compliance, ineffectual certified
question appeals continue to “add[] to the growing heap of appellate fatalities that have resulted
when would-be appellants failed to heed the Preston-Pendergrass litany of requirements for
certified-question appeals.” See State v. Carl F. Neer, No. E2000-02791-CCA-R3-CD, slip op. at
2 (Tenn. Crim. App., Knoxville, Oct. 8, 2001). For at least two reasons, the present case must be
tossed onto this heap.

                First, the question as presented does not “identify clearly the scope and limits of the
legal issue reserved,” as required by Tennessee Rule of Criminal Procedure 37(b)(2)(A)(ii). The
question merely asks whether the trial court erred in overruling the motion to suppress and identifies
no legal issue as a basis for error. This lapse alone disqualifies the appeal.

                Second, the judgment, which bears no approving signatures of either the defendant’s
attorney or the prosecuting attorney, does not itself indicate that the “reserved” question was
dispositive of the case and deemed as such by both parties and the trial court. Rule 37 requires that
“the judgment or [other document to which such judgment refers that is filed before the notice of


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appeal] reflect[] that the certified question was expressly reserved with the consent of the state and
the trial court.” Id. at 37(b)(2)(A)(iii). Furthermore, the “judgment or document [must] reflect that
the defendant, the state, and the trial court are of the opinion that the certified question is dispositive
of the case.” Id. at 37(b)(2)(A)(iv). Although a Rule 37(b) appeal may be advanced when the
otherwise nonconforming judgment incorporates by reference an existing document that satisfies the
terms of the Preston-Pendergrass rule, see, e.g., State v. Chance Coy Herron, No. M2004-
00553-CCA-R3-CD, slip op. 3 (Tenn. Crim. App., Nashville, Dec. 1, 2004), the judgment under
review incorporated nothing. Thus, the attempt to reserve a certified question fails for this reason,
as well.

                In light of these determinations, we dismiss this post-guilty plea appeal.


                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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