Was Decided In State v. Vasser, 870 S.W.2D 543 (Tenn. Crim. App. 1993), He Asserts That ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9708-CC-00364
Appellee, )
) LEWIS COUNTY
VS. ) (No. 5505 Below)
) The Hon. Donald P. Harris
ROBERT GERRY JERNIGAN, )
) (Certified Question of Law)
Appellant. ) AFFIRMED PURSUANT TO RULE 20
ORDER
This matter is before the Court upon the state’s motion requesting that the
judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals Rules. Based on our review, we affirm the judgment of the trial court
pursuant to Rule 20.
The appellant pled guilty to driving under the influence, first offense, and
attempts to appeal a certified question of law. Specifically, the appellant contends that he
is eligible and entitled to judicial diversion. While the appellant concedes that this issue
was decided in State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993), he asserts that
the reasoning in Vasser was erroneous. Although we find this issue is without merit, the
Court must first determine whether a certified question of law is properly before us.
In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our Supreme Court stated
that when a defendant pleads guilty and wishes to reserve a certified question of law
pursuant to Tenn. R. Crim. P. 37(b)(2)(i) or (iv), “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.” Id. at 650. The defendant must assure that the final order complies with
these requirements and that the record on appeal contains the proceedings necessary to
a complete determination. Id.In this case, the appellant failed to explicitly reserve the right to appeal a
certified question of law that was dispositive of the case as mandated by Tenn. R. Crim.
P. 37(b)(2)(iv) and Preston. See also State v. Pendergrass, 937 S.W.2d 834, 837-38
(Tenn. 1996). We are, therefore, precluded from considering whether the appellant was
entitled to judicial diversion. Even if we were to review this issue on the merits, we would
not grant relief based on State v. Vasser, 870 S.W.2d 543, 547.
IT IS, THEREFORE, ORDERED that the state’s motion to affirm the
judgment of the trial court pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules
is granted and the judgment of the trial court is affirmed. Costs are taxed to the appellant.
I T I S F U R T H E R O R D E R E D t h a t t h e a p p e ll a n t ' s b o n d i s h e r e b y r e v o k e d .
T h e a p p e l l a n t s h a l l b e t a k e n in t o c u s t o d y im m e d i a t e l y b y t h e p r o p e r a u t h o r i t i e s .
ENTER, this the ____ day of October, 1997.
_____________________________
JOHN H. PEAY, JUDGE
CONCUR:
_____________________________
DAVID H. WELLES, JUDGE
_____________________________
THOMAS T. WOODALL, JUDGE
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