        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              On Brief September 22, 2010

            STATE OF TENNESSEE v. JOHN ANTHONY PARTIN

                   Appeal from the Circuit Court for Sequatchie County
                        No. 2009-CR-57 J. Curtis Smith, Judge



                 No. M2010-00190-CCA-R3-CD - Filed February 24, 2011


The Sequatchie County Grand Jury indicted Appellant, John Anthony Partin, for one count
of driving under the influence (“DUI”) and one count of violation of the implied consent law.
Appellant filed a motion to suppress the evidence collected as a result of his interaction with
the law enforcement officer. The trial court denied the motion to suppress. Subsequently,
Appellant pled guilty to one count of DUI, first offense and reserved a certified question of
law for appeal to this Court. After a review of the record on appeal, we conclude that
Appellant did not properly reserve his certified question. Therefore, this Court has no
jurisdiction to hear this appeal, and the appeal is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Dismissed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, John Anthony Partin.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; J. Michael Taylor, District Attorney General; and David Shinn, Assistant District
Attorney General, for the appellee, State of Tennessee.




                                         OPINION

                                    Factual Background

      At about 1:24 a.m. on November 14, 2008, Sergeant Gary Craft with the Sequatchie
County Sheriff’s Department was driving down Fredonia Mountain en route with his blue
lights flashing to a motor vehicle accident involving a fatality. He was driving down the
mountain on Fredonia Road which is a very narrow and curvy road. It was very foggy the
night in question. As he proceeded down the mountain he came around a curve and thought
he saw an oncoming vehicle in his lane. He was blinded momentarily by the headlights of
the oncoming car. When he came upon the car in question, he realized that the car was
parked on the side of the road in a pull-off location. The car was running with the lights on
and blinding oncoming traffic. Sergeant Craft was concerned for the driver and backed into
the pull-off location behind the car. When he reached the car and looked into the window,
he saw that Appellant was passed out under the steering wheel and he had a beer between his
legs and an open beer in the console of the car. At this point, Sergeant Craft woke up
Appellant and began a stop for DUI.

        In January 2009, the Sequatchie County Grand Jury indicted Appellant for one count
of DUI and one count of violation of the implied consent law. Appellant filed a motion to
suppress arguing that all evidence seized and obtained as a result of Sergeant Craft’s
investigation was illegally obtained in violation of the Fourth Amendment of the United
States Constitution. The trial court denied the motion after holding an evidentiary hearing
on the matter. Appellant pled guilty on December 10, 2009, to DUI, first offense. The trial
court sentenced Appellant to eleven months and twenty-nine days with all but five days
suspended, the remainder to be served on probation. Appellant purported to reserve a
certified question appealing the denial of his motion to suppress.

                                        ANALYSIS

      In pertinent part, Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure
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 . . . upon
       a plea of guilty or nolo contendere if . . . 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

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       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; . . . .


       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 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; 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). As the appellate
courts have written time and again, the requirements of Preston are extremely clear. See
Pendergrass, 937 S.W.2d at 837. This Court has consistently held that the Preston
requirements are jurisdictional. See State v. Alaric Barret Crouch, No. M1999-02057-CCA-
R3-CD, 2000 WL 31859, at *2 (Tenn. Crim. App., at Nashville, Jan. 18, 2000), perm. app.
denied, (Tenn. Sept. 18, 2000); State v. Stuart Allen Jenkins, No. 01C01-9712-CR-00590,
1998 WL 917806, at *2 (Tenn. Crim. App., at Nashville, Dec. 21, 1998); State v. Charlotte

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Little, No. 03C01-9504-CR-00113, 1996 WL 33174, at *3 (Tenn. Crim. App., at Knoxville,
Jan. 30, 1996); State v. Charles R. Sanders, No. 01C01-9312-CC-00420, 1994 WL 398823,
at *1 (Tenn. Crim. App., at Nashville, Jul. 21, 1994), perm. app. denied, (Tenn. Dec. 12,
1994). In many of these cases the State, defendant and trial court have all agreed, as
evidenced by the guilty plea transcripts, 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 because this Court 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).

       Appellant’s certified question is as follows:


       Whether the encounter between the Defendant and Deputy Gary Craft of the
       Sequatchie County Sheriff’s Department on November 14, 2008 on Fredonia
       Mountain Road in Sequatchie County and the subsequent observations, search,
       seizure and arrest of the Defendant by Deputy Craft were in violation of the
       United States and Tennessee Constitutions and the laws of the State of
       Tennessee.


The State argues that Appellant failed to properly reserve his certified question because the
question as written does not “clearly identify the scope and limits of the legal issue
presented.” We agree with the State. Preston specifically states that the certified question
must include, “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 . . . .” Preston, 759 S.W.2d at 650.

        In State v. Kale J. Sandusky, No. M2008-00589-CCA-R3-CD, 2009 WL 537526
(Tenn. Crim. App., at Nashville, Mar. 4, 2009), perm. app. denied, (Tenn. Aug. 24, 2009),
the defendant reserved the following certified question, “‘whether or not the entries by law
enforcement into [the Defendant’s] home on October 23, 2006 were in violation of
constitutional guarantees against unreasonable searches and seizures under the state and
federal constitutions . . . .’” Kale J. Sandusky, 2009 WL 537526, at *3. We held that the
certified question was too broad and dismissed the appeal. In State v. Nicholas J. Johnson,
No. M2000-03162-CCA-R3-CD, 2001 WL 1356369 (Tenn. Crim. App., at Nashville, Nov.
6, 2001), perm. app. denied, (Tenn. Apr. 8, 2002), we concluded that the certified question
was too broad that raised the issue of “‘the validity of the search and seizure of the’
Appellant.” Nicholas J. Johnson, 2001 WL 1356369, at *2. We stated the following:

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       The question is not only patently non-specific but also does not clearly identify
       the reasons relied upon by the Appellant at the suppression hearing.
       Additionally, review of the question as presently framed would potentially
       require a complete dissertation of the law of search and seizure of which this
       court is not willing to engage in absent specific boundaries circumscribed by
       the Appellant.


Id. at *2.

       In this case, Appellant’s certified question is not unlike those in Kale J. Sandusky and
Nicholas J. Johnson. Other than a general statement referencing “the encounter,”
Appellant’s certified question sets out neither specific facts about the encounter that
constitute a violation of the federal and state constitutions as well as the laws of Tennessee
nor in what way the encounter violated the constitutions and laws. The certified question as
framed would require a dissertation of search and seizure law, and as stated in Nicholas J.
Johnson, this Court is not willing to do so without parameters set by Appellant.

       It is an appellant’s burden to “reserv[e], articulat[e], and identify[ ] the issue.”
Pendergrass, 937 S.W.2d at 838. Because Appellant failed to properly reserve his certified
question of law, we are without jurisdiction to review the merits of his claim.

                                      CONCLUSION

       For the foregoing reasons, we have no jurisdiction to hear this appeal and, therefore,
the appeal is dismissed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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