State vs.Lamanis Owens ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1999 SESSION
FILED
February 5, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9803-CC-00088
Appellee, )
) OBION COUNTY
VS. )
) HON. WILLIAM B. ACREE, JR.,
LAMANIS EUGENE OWENS, ) JUDGE
)
Appellant. ) (Certified Question of Law)
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES H. BRADBERRY PAUL G. SUMMERS
Court Square West Attorney General and Reporter
109 Poplar Street
P.O. Box 789 CLINTON J. MORGAN
Dresden, TN 38225-0789 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
THOMAS A. THOMAS
District Attorney General
JAMES T. CANNON
Assistant District Attorney General
414 South Fourth
P.O. Box 218
Union City, TN 38261-0218
OPINION FILED:
APPEAL DISMISSED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Lamanis Eugene Owens, pled guilty in Obion County
Circuit Court to possession of marijuana over one-half ounce with the intent to
sell, a Class E felony. The guilty plea was entered after the trial court overruled
defendant's motion to suppress evidence. Although defendant attempted to
reserve the suppression issue as a certified question of law dispositive of the
case, he failed to properly do so. The appeal, therefore, is DISMISSED.
I.
The defendant was observed making a turn in his car without signaling.
Officer Scott King of the Union City Police Department made a traffic stop based
upon the defendant's failure to signal. The defendant could not produce a
driver's license, and King learned from the dispatcher that the defendant's
driver's license was suspended. The defendant was arrested for driving on a
suspended license and placed in King's patrol car.
Officer King then conducted a search of the passenger compartment of
defendant's car incident to the arrest. The search yielded 285 grams of
marijuana. The defendant was then arrested for possession of marijuana with
the intent to sell.
The defendant subsequently filed a motion to suppress, alleging King had
made an illegal pretextual stop. The defendant changed theories at the hearing
on the motion and claimed the stop was invalid because he did not violate the
signal statutes. See Tenn. Code Ann. §§ 55-8-142(a); 55-8-143(a)(requiring a
signal only when other traffic may be affected by such movement).
The trial court overruled the motion to suppress, finding a lawful stop
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pursuant to a traffic violation. The trial court further held the search incident to a
lawful arrest and valid based upon New York v. Belton, 453 U.S. 454, 101 S.Ct.
2860, 69 L.Ed.2d 768 (1981).
The defendant subsequently pled guilty to the offense. Neither the written
guilty plea agreement nor the guilty plea transcript is a part of the appellate
record; however, the following sentence appears in the judgment form under
special conditions: "Defendant reserves the right to appeal the legality of the
stop and search." This one sentence appears to be the defendant's attempt to
reserve the issue for determination as a certified question of law dispositive of
the case.
II.
The state argues that the defendant failed to properly reserve a certified
question of law. We must agree with the state’s argument.
Tenn. R. Crim. P. 37(b)(2) specifies the avenue of appeal for a defendant
who pleads guilty and desires to reserve a certified question of law dispositive of
the case. The Tennessee Supreme Court explicitly outlined the requirements to
properly reserve a certified question of law.
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
. . . 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 . . . Also, the order must state that the certified
question was expressly reserved as part of the plea
agreement, that the State and the trial judge consented
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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. No issue beyond the scope of
the certified question will be considered.
State v. Preston, 759 S.W .2d 647, 650 (Tenn. 1988). These requirements have
been strictly interpreted by the Tennessee Supreme Court since the Preston
decision. See State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996).
In Pendergrass, the Tennessee Supreme Court addressed a trial court's
issuance of a second order of judgment in an attempt to cure the first order's
failure to mention the certified question of law. Pendergrass, 937 S.W.2d at 835.
The second order, filed over a month after the first, provided as follows:
It appears that the Defendant, SHERYL
PENDERGRASS, by and through counsel, has timely
filed a Notice of Appeal in this case. The Defendant is
appealing a certified question of law with regard to a
Motion to Suppress evidence.
It appears that the Defendant filed a Motion to
Suppress evidence based upon allegations that the
State illegally obtained evidence by listening to
conversations of the Defendant and other persons by
electronically monitoring the Defendant's cordless
telephone conversations . . .
The Defendant has now timely filed a Notice of Appeal
and has explicitly reserved with consent of the State
and of the trial court the right to appeal the certified
question of law that is dispositive of the case.
Id. at 835-36. Although the second order was ruled untimely, the Court further
stated that it also failed to comply with the "unambiguous mandatory
prerequisites of Preston." Id. at 838. The Court held the second order did not
clearly identify the scope and limits of the legal issue involved, making it
impossible for an appellate court to properly review the final judgment of the trial
court. Id.4
In the instant appeal, the order of judgment contains even less information
than the Pendergrass order. It falls short of fulfilling several of the mandates of
Preston. The sole statement that “Defendant reserves the right to appeal the
legality of the stop and search" is insufficient. As the certified question of law is
not properly before this Court, the appeal is DISMISSED.
________________________
JOE G. RILEY, JUDGE
CONCUR:
______________________________
DAVID G. HAYES, JUDGE
______________________________
JOHN EVERETT WILLIAMS, JUDGE
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