        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs June 2, 2009

          STATE OF TENNESSEE v. RANDALL GENE REYNOLDS
                                a.k.a RANDY REYNOLDS

                 Direct Appeal from the Circuit Court for Lake County
                   No. 07-CR-9013     Russell Lee Moore, Jr., Judge


                No. W2008-01752-CCA-R3-CD - Filed January 14, 2010


The Appellant-Defendant, Randall Gene Reynolds, pled guilty in the Circuit Court of Lake
County to flagrant nonsupport of a minor child, a Class E felony. He was sentenced to five
years of probation and was ordered to pay restitution in the amount of $13,440. Pursuant to
Tennessee Rule of Criminal Procedure 37, Reynolds reserved as a certified question of law
the issue of whether the trial court erred by denying his motion to dismiss the indictment.
Reynolds contends the order setting child support was invalid, and therefore his failure to
comply with the order cannot form the basis of prosecution. Following our review of the
record, we conclude that the certified question is not dispositive of this case, and thus we lack
jurisdiction to review this appeal. The judgment of the trial court is affirmed.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

James E. Lanier, District Public Defender; H. Tod Taylor, Assistant District Public Defender,
Dyersburg, Tennessee, for the Defendant-Appellant, Randall Gene Reynolds.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Lance Webb, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

      Background. On July 9, 2007, Reynolds was indicted for two counts of flagrant
nonsupport of minor children. The record does not indicate the disposition of count one;
however, the briefs for both parties indicate that count one was dismissed because it was
barred by the statute of limitations. Count two states:

               The GRAND JURORS of LAKE County, Tennessee, duly empaneled
       and sworn upon their oath present that RANDALL REYNOLDS aka RANDY
       REYNOLDS, heretofore, to-wit, during a period of time from July 9, 2005 to
       present, and before the return of this indictment, in Lake County, Tennessee,
       did unlawfully fail to provide support to his minor child, David R. Reynolds,
       knowing that he had a duty to provide said support and which support he is
       able to provide, and after having previously been convicted of nonsupport of
       minor children in Lake County Circuit No. 98-CR-7854 on March 22, 1999,
       in violation of T.C.A §39-15-101, a Class E felony, and against the peace and
       dignity of the State of Tennessee.

       Reynolds filed a motion to dismiss the indictment on October 18, 2007. He argued
that the order setting child support was invalid because the court that originally set child
support, the Juvenile Court for Lake County, lacked jurisdiction. The trial court summarized
the underlying facts of Reynolds’ claim as follows:

              On December 2, 1993, Misty Reynolds, the mother of the children in
       question, filed for divorce from Randall Reynolds, the defendant in this cause,
       in the Lake County Chancery Court, docket no. 3859. . . .

              ...

              On June 13, 1995, a petition to set child support was filed in the
       Juvenile Court for Lake County, Tennessee, by Misty Reynolds, docket no.
       C95-159. . . .

              On June 29, 1995, a second complaint for divorce was filed by Misty
       Reynolds against Randall Reynolds in Lake County Chancery Court, docket
       no. 4134.

              On July 10, 1995, the Juvenile Court for Lake County, Tennessee,
       entered an order setting child support against the defendant, Randall Reynolds.

              On September 7, 1995, a judgment of divorce was granted to Misty
       Reynolds in the second divorce action, docket no. 4134. The child support
       order filed August 1, 1995, in the Juvenile Court for Lake County, Tennessee,
       was incorporated by reference into said judgment of divorce.

                                             -2-
               The defendant alleges that the Juvenile Court for Lake County,
       Tennessee, was never vested with jurisdiction to set and enforce child support
       due in this cause because the Chancery Court for Lake County, Tennessee, had
       acquired exclusive jurisdiction on December 2, 1993, to set and enforce child
       support due to the filing of the first complaint for divorce, docket no. 3859.
       Specifically, defendant asserts that since the second divorce complaint was
       dismissed in the same court, the Chancery Court and not the Lake County
       Juvenile Court was at all times exclusively vested with jurisdiction to set and
       enforce child support in this cause.

       The trial court denied Reynolds’ motion to dismiss, making the following findings:

               Under the facts of this case, the Court finds that at the dismissal of the
       first complaint for divorce, the Juvenile Court acquired jurisdiction to set child
       support. Even if jurisdiction was not vested in the Juvenile Court, the
       Chancery Court for Lake County, incorporated the Order of the Juvenile Court
       setting the child support when divorce was granted on September 7, 1995.
       Defendant’s Motion to Dismiss for lack of jurisdiction is, therefore, denied.

        After the motion to dismiss was denied, Reynolds pled guilty to count two of the
indictment. Pursuant to Tennessee Rule of Criminal Procedure 37, he reserved the following
certified question:

               Whether the Trial Court erred in denying Defendant’s motion to dismiss
       the indictment when it held that the Juvenile Court of Lake County, Tennessee
       was vested with jurisdiction to set child support in this cause and that even if
       jurisdiction was not vested in the Juvenile Court to set child support the Order
       of the Chancery Court of Lake County, Tennessee incorporating in the Decree
       of Divorce the Juvenile Court’s order setting child support cured any
       jurisdictional defect.

                                         ANALYSIS

       I. Certified Question. Reynolds claims the trial court should have dismissed count
two of the indictment because the original order setting child support was invalid. He argues
that the Chancery Court of Lake County was not permitted in the judgment of divorce to
incorporate the Juvenile Court’s order because the Chancery Court had exclusive jurisdiction
to set child support. Therefore, Reynolds contends his failure to comply with the child
support order cannot serve as the predicate conviction upon which the prosecution is based.
In response, the State asserts that Reynolds’ claim is not dispositive of this case because the

                                              -3-
charged offense does not require proof that Reynolds violated an order requiring payment of
child support. Consequently, the State asserts this court lacks jurisdiction to hear this appeal.
Upon review, we agree with the State.

        Tennessee Rule of Criminal Procedure 37(b)(2)(A) allows a defendant to enter a
guilty plea but reserve the right to appeal a certified question of law, subject to certain
requirements. One requirement is that “the judgment or document reflects that the defendant,
the state, and the trial court are of the opinion that the certified question is dispositive of the
case[.]” Tenn. R. Crim. P. 37(b)(2)(A)(iv) (2005). In determining whether the certified
question is dispositive, this court is not bound, however, by the opinion of the trial court, the
defendant, and the State. State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003).
This court is permitted to make an independent determination about whether the certified
question is dispositive from the record. State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007)
(citing State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988) (internal citation omitted)). If
this court finds that the certified question is not dispositive, appellate review must be denied.
Preston, 759 S.W.2d at 651.

        This court has stated that a certified question is dispositive “when this court must
either affirm the judgment or reverse and dismiss.” State v. Wilkes, 684 S.W.2d 663, 667
(Tenn. Crim. App. 1984). The Tennessee Supreme Court has reviewed a series of cases
which found that a certified question was not dispositive where “the record before the
appellate court demonstrated that the prosecution had evidence not challenged by the
certified question that could be used to prosecute the defendant.” Dailey, 235 S.W.3d at 136.
For example in State v. Walton, the defendant pled guilty to burglary charges but reserved
as a certified question the admissibility of incriminating statements made to the police. 41
S.W.3d 75, 80 (Tenn. 2001). The Court held that the question was not dispositive because
the record contained other evidence that incriminated the defendant. Id. at 96.

       Tennessee Code Annotated section 39-15-101, provides:

       (a) A person commits the crime of nonsupport who fails to provide support
       which that person is able to provide and knows the person has a duty to
       provide to a minor child or to a child or spouse who, because of physical or
       mental disability, is unable to be self-supporting.

               ...

       (c) “Support” includes, but is not limited to, financial assistance, food, shelter,
       clothing, medical attention or, if determined elsewhere by law, other necessary
       care.

                                                -4-
       As pertinent to this case:

       (d) A person commits the offense of flagrant nonsupport who:

              ...

              (2) Having been convicted one (1) or more times of nonsupport or
              flagrant nonsupport, is convicted of a subsequent offense under this
              section.

       The indictment in this case charged flagrant nonsupport based on Reynold’s prior
guilty plea in the Lake County Circuit Court to misdemeanor nonsupport of a minor child.
There is no dispute that the defendant was ordered to pay child support by the Lake County
Juvenile Court on August 1, 1995. There is also no dispute that on September 7, 1995, the
Chancery Court for Lake County granted a judgment of divorce in which it adopted and
incorporated by reference the juvenile court order setting Reynold’s child support payments.
The defendant argues, however, that the Chancery Court had exclusive jurisdiction over child
support, therefore, the orders for child support and contempt issued by the Lake County
Juvenile Court were invalid. However, we fail to see how the Defendant-Appellant’s issue
is dispositive of the case or how this question is appropriate for our review.

      First, the indictment in this case was based upon the defendant’s guilty plea in the
Lake County Circuit Court to nonsupport of minor children, a class A misdemeanor, on
March 22, 1999. Significantly, the record does not show whether this prior conviction
stemmed from a violation of any child support order. Reynolds received a sentence of eleven
months and twenty nine days in the Tennessee Department of Correction, to be served
concurrently with several other cases. There was no appeal of that criminal conviction.
These facts establish the elements of the offense without any constitutional abridgement.
Therefore, the judgment of the trial court is affirmed.

        Next, we are compelled to briefly respond to Reynolds claim that the instant
prosecution is jurisdictionally flawed. In Reynolds brief, he focuses exclusively on the
invalidity of the child support orders alleging the Lake County Juvenile Court lacked
jurisdiction to issue them. On September 18, 2006, more than ten years after the entry of the
August 1995 Juvenile Court order, the defendant filed a motion to set aside the August 1995
Juvenile Court order alleging, inter alia, that he had not received notice of the court’s prior
hearing concerning child support and that the arrearage figures were not consistent with the
Tennessee Child Support Guidelines. The Lake County Juvenile Court set the matter for a
hearing. After several continuances, and following the issuance of the instant indictment,
the record shows the matter was dismissed by “voluntary non-suit.” Here, we must observe

                                              -5-
that Reynolds attack is upon the civil judgments, not the instant criminal conviction. In civil
actions, Rule 60 of the Tennessee Rules of Civil Procedure1 provides the appropriate vehicle
for a party to obtain relief from a final judgment. See e.g. Bankston v. State, 815 S.W.2d
213, 216 (Tenn. Crim. App.1991). We see this case no differently than a defendant who is
charged with violating the Habitual Motor Vehicle Offender Act (HMVO), the Class E
felony, and does not attack the original HMVO order. Instead, the HMVO defendant files
a motion to dismiss the indictment charging him with violating the HMVO order. We have
previously held that this amounts to a collateral attack in a separate proceeding which is not
permissible. Everhart v. State, 563 S.W.2d 795, 797-98 (Tenn.Crim.App.1978)

        Thus, an appeal of this nature is not the appropriate vehicle to challenge the
jurisdiction of the Juvenile Court to impose a child support order or the Chancery Court’s
adoption and incorporation thereof. Accordingly, this issue is not appropriate for our review.

        Because we cannot decide whether to reverse or affirm the judgment of the trial court
based upon the Juvenile Court’s lack of jurisdiction to issue the child support order, Reynolds
has not reserved a certified question that is dispositive of his case. See Wilkes, 684 S.W.2d
at 667. Accordingly, we do not have jurisdiction to review his appeal, and Reynolds is not
entitled to relief.

                                             CONCLUSION

       Upon review, we conclude that Reynolds’ certified question is not dispositive of this
case, and therefore we are without jurisdiction to consider the appeal. Accordingly, the
appeal is dismissed.


                                                           ___________________________________
                                                           CAMILLE R. McMULLEN, JUDGE




        1
          Rule 60 provides: On motion and upon such terms as are just, the court may relieve a party or the
party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the
judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective
application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall
be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment,
order or proceeding was entered or taken. Tenn. R. Civ. P. 60.02.

                                                     -6-
