        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 October 12, 2004 Session

              STATE OF TENNESSEE v. CHANCE COY HERRON

                Direct Appeal from the Criminal Court for Putnam County
                          No. 02-0390    Lillie Ann Sells, Judge

                               ____________________________

                  No. M2004-00553-CCA-R3-CD - Filed December 1, 2004
                           _____________________________

The defendant appeals, on a certified question of law, the trial court’s failure to suppress
evidence resulting from his warrantless arrest and search of his home. Because the defendant
has failed to properly reserve a certified question of law for appeal, we dismiss.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH , JJ., joined.

John Wayne Allen, Cookeville, Tennessee, for the appellant, Chance Coy Herron.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; William Edward Gibson, District Attorney General; and Anthony J. Craighead,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                           OPINION

                                Facts and Procedural History

        The defendant, Chance Coy Herron, pled guilty to leaving the scene of an accident,
possession of marijuana, and possession of drug paraphernalia. Pursuant to Tennessee Rule of
Criminal Procedure 37(b)(2)(1), he reserved the right to appeal a certified question of law
relating to his warrantless arrest and the subsequent seizure of evidence from his home. In this
appeal, the defendant asserts that the trial court erred in refusing to suppress the evidence
obtained against him as a result of the unlawful arrest and search. Specifically, the defendant
contends that the officer unlawfully searched the curtilage of his home without first obtaining a
search warrant; that the defendant’s consent to a warrantless search was not given freely and
voluntarily; and that the officer had no authority to make a warrantless arrest for a misdemeanor
offense, therefore, the search incident to arrest was also illegal.
        On the evening of March 21, 2003, an automobile ran off the road at the intersection of
Water Plant Road and Baxter Road in Putnam County. The vehicle hit a fence post, and the
driver fled the scene of the accident. An eyewitness observed the incident and directed an
officer to the home of the defendant. Upon arrival, the officer observed a vehicle with apparent
damage to the front end and proceeded to approach the house. When the officer advised the
defendant that he was investigating an accident, the defendant admitted that the vehicle was his
and that he had wrecked it earlier in the evening. The officer then asked the defendant if he
could search the vehicle, and the defendant consented.

       As a result of the search, the officer found the damage to the defendant’s vehicle to be
consistent with that of hitting a fence post. Moreover, the search yielded two hypodermic
needles and a partially smoked marijuana cigarette. When questioned about the needles, the
defendant initially stated he was diabetic, but later admitted that he was not. At that point, the
defendant was placed under arrest.

        On January 29, 2004, the defendant pled guilty to the three charges. On the same day,
the trial court entered an order noting the guilty pleas and setting forth the defendant’s certified
question of law. This “Order Reserv[ing the] Right to Appeal” explicitly stated that the
defendant was reserving, with the consent of the court and the State, the right to appeal a
certified question of law which was dispositive of the case. Specifically, it stated:
        Said question of law is whether an officer can perform a valid warrantless arrest
        of an individual at his home without exigeint [sic] circumstances and whether this
        violates the fourth amendment of the United States Constitution and Article 1,
        Section 7 of the Tennessee Constitution. Defendant was arrested by deputy
        sheriff David Gibbons on March 21, 2003. Officer Gibbons had neither a search
        warrant or an arrest warrant. Defendant alleges that the evidence seized at his
        home, specifically drugs and two hypodermic needles, such [sic] be suppressed.

        On April 8, 2004, judgments were entered against the defendant. The judgment forms
neither made mention of the certified question of law nor made reference to the earlier order,
which did set forth the issues.

                                             Analysis

      Tennessee Rule of Criminal Procedure 37(b) provides that an appeal lies from any
judgment of conviction,
      (2) [U]pon 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; or
              ...
              (iv)   the defendant explicitly reserved with the consent of the court the right to
                     appeal a certified question of law that is dispositive of the case.


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        Instructive on the issue of appellate review of certified questions of law is our supreme
court’s opinion in State v. Preston, 759 S.W.2d 647 (Tenn. 1988). In giving guidance to the
bench and bar, the court enunciated prerequisites to an appellate court’s consideration of a
certified question of law on its merits. Specifically, the court opined:
        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 . . . . 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. Of course, the burden is on
        the defendant to see that these prerequisites are in the final order and 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.
Id. at 650.

        This Court further clarified the language “final order or judgment” in State v. Lillie Fran
Ferguson, when it held that “the judgment document entered pursuant to the mandate of
Supreme Court Rule 17 is clearly the ‘final order of judgment from which the time begins to run
to pursue a T.R.A.P. 3 appeal’ as referenced by Preston.” State v. Lillie Fran Ferguson, No.
W2000-01687-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 314, at *8 (Tenn. Crim. App., at
Jackson, April 27, 2001) (citing Preston, 759 S.W.2d at 650). Therefore, this Court explicitly
identified the uniform judgment form as the pertinent document for determining if the question
presented has been properly certified.

        Generally, because the requirements listed in Preston are mandatory, the defendant’s
failure to comply results in a requisite dismissal of the appeal. See State v. Pendergrass, 937
S.W.2d 834, 838 (Tenn. 1996); State v. Caldwell, 924 S.W.2d 117, 119 (Tenn. Crim. App.
1995). However, if the judgment fails to satisfy the mandates of Preston, but does incorporate
by reference a separate document which would satisfy those requirements, then the certification
of issues will be sufficient for appellate review. See State v. Irwin, 962 S.W.2d 477, 479 (Tenn.
1998); Pendergrass, 937 S.W.2d at 837. Moreover, in State v. Armstrong, 126 S.W.3d 908
(Tenn. 2003), our supreme court granted further leniency to this generally strict rule. In that
case, the court held that a “[c]orrective nunc pro tunc order entered after the final judgment
while the trial court had jurisdiction [to correct deficiencies in the record] and before the filing of
a notice of appeal” met the requirements of Preston and properly reserved the defendant’s
certified question of law. Id. at 912-13.

        In the present case, the final judgments do not contain a statement of any dispositive
question of law, an express reservation of a certified question, or a statement that the State and
trial court agree that the question is dispositive; thus, the judgments meet none of the
requirements of Preston. Further, although the record does contain a document entitled “Order

                                                 -3-
Reserv[ing] Right to Appeal,” which appears to satisfy Preston, that order is not mentioned in
any of the judgments. Finally, there was no corrective order filed subsequently that would
remedy the omission in the judgment form. Therefore, because the judgment neither explicitly
nor implicitly fulfills the aforementioned requirements, appellate review of the question
presented is precluded.

                                         Conclusion

       Based on the foregoing, and the record as a whole, the appellant has failed to properly
reserve a certified question of law for appeal in accordance with the requirements of Tennessee
Rule of Criminal Procedure 37, and this appeal is hereby dismissed.




                                                    ___________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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