           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                            AUGUST SESSION, 1998        September 23, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                )     C.C.A. NO. 01C01-9709-CC-00394
                                   )
             Appellee,             )
                                   )     LINCOLN COUNTY
V.                                 )
                                   )
                                   )     HON. CHARLES LEE, JUDGE
TIMM Y BE AVER S,                  )
                                   )
             Appe llant.           )     (FIRST DEGREE MURDER)



FOR THE APPELLANT:                       FOR THE APPELLEE:

CURTIS H. GANN                           JOHN KNOX WALKUP
District Public Defe nder                Attorney General & Reporter

DONNA L. HARGROVE                  ELIZABETH B. MARNEY
Assistant Public Defender               Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
JOHN H. DICKEY                          425 Fifth Avenue North
Assistant Public Defender               Nashville, TN 37243

MICHAEL D. RANDLES                       WILLIAM MICHAEL McCOWN
Assistant Public Defender                District Attorney General
P.O. Box 1119
Fayetteville, TN 37334                   WEAKLEY E. BARNARD
                                         Assistant District Attorney General
GERALD L. GULLEY, JR.                    Marshall County Courthouse, Room 407
P.O. Box 1708                            Lewisburg, TN 37091
Knoxville, TN 37901-1708
(ON APPEAL ONLY)




OPINION FILED ________________________

AFFIRMED; APPEAL DISMISSED

THOMAS T. WOODALL, JUDGE
                                  OPINION
      This appeal by Defendant Timmy Beavers attempts to present a certified

question of law pursuant to Rule 3(b ) of the Te nness ee Ru les of Ap pellate

Procedu re and Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The

certified question Defendant attempts to present to this Court involves the trial

court’s denial of a motion to suppress certain evidence obtained from Defendant.

Because we co nclud e that th is ma tter is no t prope rly before us, the judgment below

is affirmed and the appea l is dismiss ed.



      On October 2, 1995, a search warrant was issued and samples of Def enda nt’s

hair, saliva, and blood were obtained. On September 17, 1996, Defendant was

indicted on one count of premeditated first degree murder. Defendant filed a motion

to suppress the DNA samples, and following a hearing, the trial court ordered the

evidence to be suppressed. On April 22, 1997, the State filed a second motion to

obtain hair, saliva, and blood samples from Defendant. The trial court granted the

State ’s motion and issued an order and second search warrant to obtain the

samples from Defendant. On May 23, 199 7, a superseding indictment was issued,

charging Defendant with one count of premeditated murder and one count of murder

committed during a n attem pted rap e. The initial indictment was dismissed. On June

30, 1997, Defendant filed a second motion to suppress the seized samples of hair,

saliva, blood, and some clothing. The trial court denied this motion on September

16, 1997. A judgment was entered on July 29, 1997, on Defen dant’s “be st-interest”

guilty plea to second degree murder with an agreed sentence of thirty (30) years.

The judgment form reflects that Defendant reserved the right to appeal the trial




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court’s “ruling on motion to suppress.”       Defendant filed his notice of appeal on

Augu st 29, 199 7.



       Rule 37(b)(2)(I) of the Tennessee Ru les of C rimina l Proce dure p rovide s in

pertinent part as follows:

               (b) 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: (2) upon a plea of guilty
               or nolo contendere if: (I) defendant entered into a plea
               agreement under Ru le 11(e) but explicitly reserv ed with
               the conse nt of the State and of the c ourt the righ t to
               appeal a certified question of law that is dispositive of the
               case.


       Our supreme court has also prescribed guidelines that mus t be ad hered to in

order to perfect a n appe al by Rule 37(b)(2)(I). In State v. Preston, 759 S.W.2d 647

(Tenn. 1988 ), and a gain in State v. Pendergrass, 937 S.W .2d 834 (Te nn. 1996), the

court he ld:

               This is an approp riate time for this Court to make explicit
               to the bench and bar exactly what the appellate courts will
               hereafter require as prerequisites to the consideration of
               the merits of a question of law certified pursuant to Tenn.
               R. Crim . P. 37(b)( 2)(I) or (iv). Regardless of what has
               appeared in prio r petitions, orders, colloquy in open
               court or otherwise, the final order or judgment from
               which the time begins to run to p ursue a T.R.A.P . 3
               appeal must contain a statement of the dispo sitive
               certified quest ion of law reserved by defendant for
               appellate review and the question of law must be
               stated so as to clearly identify the scope and the limits
               of the legal issue reserved. For example, where
               questions of law invo lve the validity of searches and
               the admiss ibility of statemen ts and co nfessio ns, etc.,
               the reasons relied upo n 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 stateme nt of the certified question,


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              neither the defendant, the State nor the trial judge can
              make a me aningful determination of whether the issue
              sought to be re viewe d is dispositive of the case. Most of
              the reported and unreported cases seeking the limited
              appellate review pursua nt to Tenn. R . Crim. P. 37 ha ve
              been dismissed because the certified question was not
              dispositive. Also, the order must state that the certified
              question was exp ressly rese rved as p art of a plea
              agreem ent, that the S tate and the trial judge conse nted 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 these
              prerequisites are in the final order and that the re cord
              brought to the appellate courts contains all of the
              proceedings below that bear upon whether the
              certified question of law is disp ositive and th e merits
              of the question certified. No issue beyond the scope of
              the certified question will be con sidered .


Pendergrass, 937 S.W.2d at 836-37 (citing Preston, 759 S .W .2d at 6 50) (em phas is

added). The Defendant bears the burden of "reserving, articulating, and identifying

the issue ." Pendergrass, 937 S.W .2d at 838 .



       In the present case, it is clear from the record that Defendant, with the

agreement of the State and the trial court, attempted to reserve a certified question

regarding the trial court’s denial of Defendant’s motion to suppress the DNA

evidence sam ples. It is e qually clear, how ever, that Preston, Pendergrass, and R ule

37 of the Tennessee Rules of Criminal Procedure have not been followed. The

judgment in this cas e indic ates o nly that “D efend ant res erves right to a ppea l court’s

ruling on m otion to supp ress.” T herefo re, the c ertified q uestio n is not stated so as

to clearly id entify the scop e and the lim it of the legal issue reserved. The reasons

relied upon by Defendant in the trial court at th e suppression hearing are not

identified in the statement of the certified question of law. Given the clear, manda tory

language of Preston and Pendergrass, we must conclude that this appeal is not



                                             -4-
properly before u s. Accordingly, the jud gme nt belo w is affirm ed an d the a ppea l is

dismissed.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
L.T. LAFFERTY, Special Judge




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