         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 November 22, 2000 Session

              STATE OF TENNESSEE v. DANNY HAROLD OGLE

                 Direct Appeal from the Criminal Court for Sevier County
                 No. 5624  Rex Henry Ogle and Richard R. Vance, Judges



                                 No. E2000-00421-CCA-R3-CD
                                       January 17, 2001

Defendant entered a best interest plea of guilty to vehicular homicide by recklessness. The plea
attempted to reserve a certified question of law relating to the destruction of evidence; namely, the
victim’s vehicle. Specifically, defendant contends the destruction of the vehicle while it was under
state control deprived him of due process, and the trial court should have dismissed the indictment.
Upon our review of the record, we conclude that we have no jurisdiction to address the certified
question. The appeal is dismissed.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOSEPH M.
TIPTON, J., joined.

Steven E. Marshall, Sevierville, Tennessee, for the appellant, Danny Harold Ogle.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Al C. Schmutzer, Jr., District Attorney General; and Charles E. Atchley, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        Defendant entered a best interest plea of guilty to vehicular homicide by recklessness. The
parties attempted to reserve a certified question of law relating to the destruction of the victim's
vehicle. The defendant contends that because the vehicle was destroyed, a full reconstruction of the
accident could not be conducted. Defendant further contends that a reconstruction of the accident
would have led to exculpatory evidence. Thus, he argues he was denied a fair trial. Upon our review
of the record, we must conclude that this court does not have jurisdiction to address the certified
question since the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647
(Tenn. 1988). The appeal is, therefore, dismissed.
                                 PROCEDURAL BACKGROUND

        Defendant was indicted in June 1994 for the offenses of vehicular homicide by intoxication
and vehicular homicide by recklessness as a result of the death of the victim in a head-on collision
on February 23, 1994. After several continuances, the case was set for trial on November 24, 1997.
A month prior to the trial date, defense counsel retained an accident reconstructionist. It was then
discovered that the victim’s vehicle had been released from a storage facility and, therefore, was not
subject to examination by the accident reconstructionist. Defendant moved for dismissal of the
indictment due to the destruction of the vehicle while it was under state control. The trial date was
continued, and the trial court overruled the motion on July 24, 1998.

        The case was reset for trial, and on January 11, 2000, after jury selection for the trial had
begun, defendant entered a negotiated, best interest plea to vehicular homicide by reckless operation
of a vehicle. The transcript of the guilty plea clearly reveals that all parties understood that the guilty
plea was conditional upon the reservation of a certified question of law relating to the issue of the
destruction of the victim’s vehicle. See Tenn. R. Crim. P. 37(b)(2)(i). Further, the written plea
agreement executed by the assistant district attorney general and the defendant on this date
specifically refers to the certified question. However, the judgment of conviction entered by the trial
court on January 14, 2000, contains the following language: “CERTIFIED QUESTION OF LAW
RESERVED FOR APPEAL (SEE SUPPLEMENTAL ORDER).” The judgment of conviction
contains no other information relating to the certified question, and no supplemental order was filed
on that date. Notice of appeal was filed February 10, 2000. The supplemental “Order Certifying
Question” was signed by the trial judge on February 17, 2000, and entered on the same date by the
trial court clerk. That order certifies as dispositive the question of whether the defendant would be
deprived of a fair trial by the loss of the victim’s vehicle.


                                     JURISDICTIONAL ISSUE

        The state has not raised the issue as to whether the certified question is properly before this
court. However, Tenn. R. App. P. 13(b) provides that this court “shall” in all cases consider whether
this court has jurisdiction.

        We must, therefore, determine whether the question has been properly certified, and, if not,
whether such a failure deprives us of jurisdiction. In State v. Preston, 759 S.W.2d 647 (Tenn. 1988),
our Supreme Court made explicit to the bench and bar exactly what the appellate courts require as
prerequisites to the consideration of the merits of a certified question of law. These requirements
are as follows:

        Regardless of what has 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 a 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. . . . No issue beyond the scope of the certified
        question will be considered.

Id. at 650 (emphasis added); see also State v. Caldwell, 924 S.W.2d 117, 118 (Tenn. Crim. App.
1995). Failure to properly reserve a certified question of law pursuant to Preston will result in the
dismissal of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996).

         The requirements of Preston were steadfastly reaffirmed in Pendergrass. Id. at 837-38. In
Pendergrass, the judgments of conviction entered January 15, 1993, did not make reference to the
certified question of law. Notice of appeal was filed February 12, 1993, and on February 19, 1993,
the trial court entered an order certifying the question of law as dispositive of the case. Id. at 835-36.
The court noted that the judgments of conviction made no reference to the certified question, did not
contain an identification of the scope and limits of the legal issues reserved, and did not contain any
statement that the certified question was dispositive, all of which are explicitly required by Preston.
Id. at 837. The court further found the trial court lost jurisdiction on the date the notice of appeal
was filed, and its attempt to properly certify the question several days later was a nullity. Id. at 838.
Because the defendant had not complied with all of the requirements of Preston, the court dismissed
the appeal. Id.

        The attempt to certify the question of law in this case was not in compliance with Preston.
Although the judgment of conviction made reference to a certified question of law pursuant to a
supplemental order, the judgment does not identify the scope of the certified question of law and
contains no statement that the question is dispositive. Furthermore, like the subsequent order entered
in Pendergrass, the order entered by the trial court in this case was signed and entered more than
thirty days after entry of the judgment and after filing of the notice of appeal; thus, it is a nullity.

       We must now determine whether the failure to properly certify the question is jurisdictional,
thereby requiring that the appeal be dismissed. The court in Pendergrass concluded that the order
attempting to properly certify the question of law, which was entered after notice of appeal, “was
an attempt to confer jurisdiction on the Court of Criminal Appeals to hear and determine a Preston
appeal where no jurisdiction existed because of noncompliance with Rule 37.” Id. at 837. This court

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cannot assume jurisdiction of a matter upon the agreement of the parties. State v. Wilkes, 684
S.W.2d 663, 667 (Tenn. Crim. App. 1984). Furthermore, we are compelled to raise such an issue
sua sponte as it relates to our jurisdiction. Tenn. R. App. P. 13(b); State v. Bowlin, 871 S.W.2d 170,
172 (Tenn. Crim. App. 1993). This court has consistently held that the Preston requirements are
jurisdictional. See State v. Alaric Barrett Crouch, C.C.A. No. 01C01-9906-CC-00216, 2000 WL
31859, at *2 (Tenn. Crim. App. filed January 18, 2000, at Nashville), perm. to app. denied; State v.
Stuart Allen Jenkins, C.C.A. No. 01C01-9712-CR-00590, 1998 WL 917806, at *2 (Tenn. Crim.
App. filed December 21, 1998, at Nashville); State v. Charlotte Little, C.C.A. No. 03C01-9504-CR-
00113, 1996 WL 33174, at *3 (Tenn. Crim. App. filed January 30, 1996, at Knoxville); State v.
Charles R. Sanders, C.C.A. No. 01C01-9312-CC-00420, 1994 WL 398823, at *1 (Tenn. Crim. App.
filed July 21, 1994, at Nashville), perm. to app. denied (Tenn. 1994). Finding the failure to properly
certify the question of law a jurisdictional defect, we must dismiss the appeal.


                    HISTORY OF PRESTON AND TENN. R. CRIM. P. 37

         After much discussion, this panel makes the following comments concerning appeals from
guilty pleas with certified questions of law pursuant to Tenn. R. Crim. P. 37(b)(2). The rule has a
valuable purpose. It allows for the disposition of cases based upon guilty pleas where there is a
dispositive pretrial issue in dispute, thereby avoiding the necessity of a trial. The rule itself does not
set forth the detailed requirements enumerated by Preston. As the appellate courts have written time
and again, the requirements of Preston are extremely clear. See Pendergrass, 937 S.W.2d at 837.
In Preston, the supreme court noted that, “[m]ost of the reported and unreported cases seeking the
limited appellate review pursuant to Tenn. R. Crim. P. 37 have been dismissed.” Preston, 759
S.W.2d at 650. Preston was decided in 1988 and Pendergrass in 1996, and we regret to observe that,
based upon the history of appellate cases, the problems do not appear to have substantially
diminished.

         In many of these cases the state, defendant and trial court have all agreed (as evidenced by
the guilty plea transcript) that the question is properly certified, only to have the state correctly argue
on appeal that the certification was not in compliance with Preston, requiring dismissal of the appeal.
The dismissal of the appeal leads to an unwieldy result. Since the plea was entered conditionally
upon the certified question, the defendant has the opportunity to seek post-conviction relief from the
conviction and guilty plea. The defendant, state, crime victims, and the trial court are now back to
“square one,” in spite of everyone’s original agreement as to the substance of the plea agreement.
It is then months or years after the original guilty plea. The defendant may re-enter his plea and
properly certify the question back to this court. However, the defendant is not required to do so.
Thus, in spite of everyone’s earlier agreement as evidenced by the transcript of the hearing, the
parties are left in a quandary and, at the very least, face even more delay.

       Based upon the documented appellate history of guilty pleas with certified questions of law,
we observe that it has become more of a trap than serving its intended purpose. In spite of repeated
appellate cautions, the dictates of Preston are simply not being met and, according to its history, will

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not be met. Along these lines we observe that guilty pleas are often unanticipated until shortly prior
to their entry with judgments prepared by the state or trial court and entered without approval by
defense counsel. We further note that there is no requirement that either counsel approve the
judgment. See Tenn. Sup. Ct. R. 17 (signatures of attorneys “optional”). Unfortunately, it appears
there is undue prejudice to the state, crime victims, defendants and all involved in these cases
because that which has clearly been agreed upon has not been written on the appropriate document
at the appropriate time.

        Accordingly, we hope that Preston and/or Tenn. R. Crim. P. 37 will be re-examined. We
intend absolutely no disrespect in this suggestion. We would hope that if the judgment itself does
not contain the essential requirements, the appellate courts may still entertain an appeal; provided,
it is apparent from other plea documents, the guilty plea transcript, orders entered while the trial
court had jurisdiction, or any other proper record before the appellate court that, at the time of the
guilty plea, the plea “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.” See Tenn. R. Crim. P. 37(b)(2)(i)
and (iv). If the Preston requirements remain, we would hope that, at the very least, Tenn. R. Crim.
P. 37 is amended to specifically incorporate these requirements.


                                          CONCLUSION

        Our review of the record indicates that, under current law, we have no jurisdiction to
entertain this appeal. Accordingly, the appeal is dismissed.



                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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