        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 12, 2011

             STATE OF TENNESSEE v. KENNETH D. HUBANKS

               Direct Appeal from the Circuit Court for Hardin County
                       No. 8561     C. Creed McGinley, Judge




               No. W2007-00906-CCA-R3-CD - Filed October 6, 2011


A Hardin County grand jury indicted the Defendant, Kenneth D. Hubanks, for possession
with intent to sell more than .5 grams of cocaine, possession with intent to sell more than
one-half ounce of marijuana, and unlawful possession of drug paraphernalia. The Defendant
filed a motion to suppress the evidence, obtained by execution of a search warrant upon his
residence, which the trial court denied. The Defendant entered a plea of nolo contendre to
all of the charges but reserved a certified question of law pursuant to Tennessee Rule of
Criminal Procedure 37(b)(2) as to whether the search warrant established probable cause to
search his residence. After review, we conclude that the Defendant has failed to comply with
the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2). Accordingly, the
appeal is dismissed.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Lance R. Chism, Memphis, Tennessee (on appeal) and Daniel J. Mickiewicz, Memphis,
Tennessee (on appeal and at plea hearing), for the Appellant, Kenneth D. Hubanks.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Hansel McCadams, District Attorney General; Eddie N. McDaniel, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION
                                         I. Facts


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                                        Background

        This case arises from the execution of a search warrant at the Defendant’s residence
that resulted in the seizure of cocaine, marijuana, and drug paraphernalia. A Hardin County
grand jury indicted the Defendant for possession with intent to sell more than .5 grams of
cocaine, possession with intent to sell more than one-half ounce of marijuana, and unlawful
possession of drug paraphernalia. The Defendant moved to suppress the evidence seized
during the search of his residence, challenging the probable cause basis for the search
warrant. Specifically, the Defendant argued that the reliability and credibility of the
confidential informant was not established in the affidavit. The trial court held a hearing on
the motion to suppress.

        At the suppression hearing, Joe Lambert, a Hardin County Sheriff’s Department
deputy, testified that he obtained a search warrant for the Defendant’s residence from
General Sessions Court Judge Danny Smith. The affidavit in support of the search warrant
stated the following:

       Within the past three days a controlled purchase of marijuana was made from
       Kenneth Hubanks at 259 Rockpile Ln. in Hardin County, TN. A confidential
       source was searched, fitted with a monitoring device, and given money which
       can be identified if found. The source was accompanied to the address with
       an agent from the 24th DTF. The agent observed the source enter the house
       trailer and a few minutes later a male white, identified by the agent as Kenneth
       Hubanks, came outside and went inside a gray utility building and then came
       out carrying a white bag and entered the residence again. The affiant listened
       as the source and Kenneth Hubanks discussed the sale of marijuana. This was
       consistent to what the agent outside was observing. The source returned to the
       agent and turned over a bag of green leafy substance that field tested positive
       for marijuana. The agent and the source met back with the affiant at a secure
       location where the source was searched again and the evidence turned over to
       the affiant by the agent. The source stated that they saw more of the substance
       in the residence.

       Following the testimony, the trial court overruled the Defendant’s motion, finding that
the search warrant was not based on information from the confidential informant but on
“actually what the officer monitored, listened, saw, and it’s based [] directly upon this
officer’s knowledge under a controlled buy situation which provided probable cause for the
issuance of the warrant.” The Defendant offered a plea of guilty to the charges and
attempted to reserve a certified question of law about the propriety of the seizure. The trial
court entered the plea and sentenced the Defendant in accordance with the plea agreement

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to the agreed eight years for felony cocaine possession, one year for felony marijuana
possession, and eleven months and twenty-nine days for the misdemeanor paraphernalia
possession conviction. The Defendant’s eight-year sentence was to be suspended after
service of 120 days in the county jail and one year to be served on Community Corrections.
The Defendant’s other sentences were suspended.

                                         II. Analysis
                                 Certified Question of Law

       Because this appeal comes before us as a certified question of law, pursuant to Rule
37(b) of the Tennessee Rules of Criminal Procedure, we must first determine whether the
question presented is dispositive. An appeal lies from any judgement of conviction upon a
plea of guilty if the defendant entered into a plea agreement under Rule 11(a)(3) but
explicitly reserved, with the consent of the State and the court or of the court alone, the right
to appeal a certified question of law that is dispositive of the case. Tenn. R. Crim. P.
37(b)(2)(A),(D); see State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). Further, the
following are prerequisites for an appellate court’s consideration of the merits of a question
of law certified pursuant to Rule 37(b)(2):

       (i) The judgment of conviction, or other document to which such judgment
       refers that is filed before the notice of appeal, contains a statement of the
       certified question of law reserved by the defendant for appellate review;

       (ii) The question of law is stated in the judgment or document so as to identify
       clearly the scope and limits of the legal issue reserved;

       (iii) The judgment or document reflects that the certified question was
       expressly reserved with the consent of the state and the trial judge; and

       (iv) The judgment or document reflects 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)(A)(i)-(iv).

       In State v. Preston, our Supreme Court stated its intention 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).” 759 S.W.2d 647, 650 (Tenn. 1988). First, the final order or judgment
appealed from must contain a statement of the dispositive question of law reserved for

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review. Id. The question must clearly identify the scope and limits of the legal issue and
must have been passed upon by the trial judge. Id. Second, the order must also state that:
(1) the certified question was reserved as part of the plea agreement; (2) the State and the
trial judge consented to the reservation; and (3) both the State and the trial judge agreed that
the question is dispositive of the case. Id. Third, the defendant bears the burden of satisfying
the prerequisites. Id.

       A defendant may comply with these requirements either by using the judgment or a
separate document. State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998). If a separate
document is used, it must be clearly referred to or incorporated by reference into the
judgment. Id. However, the Tennessee Supreme Court has warned that mere “substantial
compliance” with Preston is not sufficient to acquire appellate review of the certified
question. State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003). Further, this court has
consistently and repeatedly held that the Preston requirements are jurisdictional. See State
v. Faith Whitley, No. W2006-02595-CCA-R3-CD, 2008 WL 450617, at *3 (Tenn. Crim.
App., at Jackson, Feb. 19, 2008) (citing multiple cases for this proposition, including State
v. Long, 159 S.W.3d 885, 887 (Tenn. Crim. App. June 16, 2004); State v. Boyd, 51 S.W.3d
206, 210 (Tenn. Crim. App. Aug. 31, 2000)), no Tenn. R. App. P. 11 application filed.

       The judgment of conviction in this case reflects no mention of the reserved certified
question of law. Additionally, there is no mention of the negotiated plea agreement, even
though the record includes a plea agreement that purports to reserve a certified question of
law. The question it “reserves” is “whether the facts contained in the affidavit of the search
warrant issued December 30, 2005 in this case, supported probable cause for the issuing of
the warrant.”

        Rule 37 clearly states that a requirement of our review of a certified question of law
is that “[t]he 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.” Tenn. R. Crim. P. 37(b)(2). In this case the
judgment of conviction does not contain a statement of the certified question of law, and it
does not refer to another document that contains a statement of the certified question law.
See Irwin, 962 S.W.2d at 479. As such, we lack jurisdiction. We take no satisfaction in the
dismissal of this or the many other failed Rule 37(b)(2) appeals. We, however, cannot
assume jurisdiction when it is denied due to failures in meeting the strict prerequisites. See
Armstrong, 126 S.W.3d at 912 and Whitley, 2008 WL 450617, at *3.

                                       III. Conclusion




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      After a thorough review of the evidence and relevant authorities, we conclude that the
proposed certified question was not properly reserved. Accordingly, we dismiss the
Defendant’s appeal.




                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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