State of Tennessee v. Justin Gibson ( 2011 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    June 21, 2011 Session
    STATE OF TENNESSEE v. JUSTIN GIBSON
    Direct Appeal from the Circuit Court for Williamson County
    No. II-CR124574     Timothy Easter, Judge
    No. M2010-02361-CCA-R3-CD - Filed December 28, 2011
    Defendant-Appellant, Justin Gibson, pled guilty to driving under the influence with a blood
    alcohol level of .08 percent or more, a Class A misdemeanor. He agreed to a sentence of
    eleven months and twenty-nine days, all of which was suspended after seven days’
    incarceration. Gibson entered a conditional plea agreement and attempted to reserve a
    certified question of law under Tennessee Rule of Criminal Procedure 37. The certified
    question of law addressed whether the search of Gibson’s home violated his constitutional
    rights and whether evidence obtained as a result should be suppressed. On appeal, he argues
    that the warrantless search was not justified by either consent or exigent circumstances. We
    conclude that we are without jurisdiction to consider the appeal because the order stating the
    certified question was not filed until after Gibson filed his notice of appeal. The appeal,
    therefore, is dismissed.
    Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
    C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
    P.J., and J OHN E VERETT W ILLIAMS, J., joined.
    Jeremy W. Parham, Nashville, Tennessee, for the Defendant-Appellant, Justin Gibson.
    Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
    Attorney General; Kim R. Helper, District Attorney General; and Kelly Lawrence, Assistant
    District Attorney General, for the Appellee, State of Tennessee.
    OPINION
    Background. On October 8, 2010, Gibson pled guilty to driving under the influence
    with a blood alcohol level of .08 percent or more. He entered a conditional plea agreement
    and attempted to reserve a certified question of law under Tennessee Rule of Criminal
    Procedure 37. The judgment form for the DUI conviction, filed on October 19, 2010,
    provided, “Sentence suspended pending certified question of law.” On November 1, 2010,
    Gibson filed a notice of appeal declaring an intent to “appeal[] the previously stated and
    submitted Certified Question of Law signed by the Honorable Timothy Easter on October
    19, 2010.” On November 18, 2010, the trial court filed an “Order for Certified Question of
    Law to the Court of Criminal Appeals.” The order stated that the State and the trial court
    consented to Gibson’s certified question of law and that the State and the trial court believed
    the question to be dispositive of the case. It also set out the previously omitted certified
    question:
    Whether the entry and subsequent search of Defendant’s home by the
    Brentwood Police Department on or about July 11, 2009, violated the
    Defendant’s rights granted pursuant to the Fourth, Fifth and Fourteenth
    Amendments to the U.S. Constitution and whether any evidence, statements
    and blood tests obtained as a result of said search should be suppressed as the
    fruits of an unconstitutional search.
    Significantly, on June 13, 2011, Gibson filed a motion with this Court for permission to file
    a late notice of appeal, which was denied.
    As with any case appealed to this court, we must first determine whether we have
    jurisdiction to consider the issues presented. Under Tennessee Rule of Criminal Procedure
    37(b)(2)(A), a defendant may appeal from any order or judgment on a plea of guilty or nolo
    contendere if the defendant reserves the right to appeal a certified question of law that is
    dispositive of the case, so long as the following four requirements are met:
    (i) the judgment of conviction or other document to which such judgment
    refers that is filed before the notice of appeal, contains a statement of the
    certified question of law that the defendant reserved for appellate review;
    (ii) the question of law is stated in the judgment or document so as to identify
    clearly the scope and limits of the legal issue reserved;
    (iii) the judgment or document reflects that the certified question was
    expressly reserved with the consent of the state and the trial court; and
    (iv) 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).
    -2-
    In State v. Pendergrass, 
    937 S.W.2d 834
     (Tenn. 1996), the Tennessee Supreme Court
    dismissed a case based on a failure to properly reserve the question before filing notice of
    appeal. In Pendergrass, the defendant entered guilty pleas to several offenses, and defense
    counsel informed the trial court that he would be filing a Rule 37 appeal on behalf of his
    client. Id. at 835. The defendant’s January 15, 1993 judgment forms regarding his guilty
    pleas failed to reference a certified question of law dispositive of the case. Id. On February
    12, 1993, the defendant filed his notice of appeal. Id. Seven days later, on February 19,
    1993, the trial court entered an order “purporting to note the appeal of a certified question
    of law.” Id. The Tennessee Supreme Court concluded that since the notice of appeal had
    been filed, the trial court was without jurisdiction to later enter an order purporting to amend
    the judgment:
    As a general rule, a trial court’s judgment becomes final thirty days after its
    entry unless a timely notice of appeal or a specified post-trial motion is filed.
    Tenn. R. App. P. 4(a) and (c); State v. Moore, 
    814 S.W.2d 381
    , 382 (Tenn.
    Crim. App. 1991). The jurisdiction of the Court of Criminal Appeals attaches
    upon the filing of the notice of appeal and, therefore, the trial court loses
    jurisdiction. State v. Peak, 
    823 S.W.2d 228
    , 229 (Tenn. Crim. App. 1991);
    compare Spence v. Allstate Ins. Co., 
    883 S.W.2d 586
    , 596 (Tenn. 1994). Once
    the trial court loses jurisdiction, it generally has no power to amend its
    judgment. Moore, 814 S.W.2d at 382. Indeed, it is well-settled that a
    judgment beyond the jurisdiction of a court is void. Brown v. Brown, 
    198 Tenn. 600
    , 
    281 S.W.2d 492
    , 497 (1955).
    937 S.W.2d at 837. In Pendergrass, the Tennessee Supreme Court stated that the February
    19, 1993 order failed to satisfy the requirements under State v. Preston, 
    759 S.W.2d 647
    , 650
    (Tenn. 1988). Id. at 837-38; see Preston, 759 S.W.2d at 650 (Tenn. 1988) (delineating the
    several requirements for properly reserving a certified question of law, including that “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”). The court ultimately concluded, “The attempt at compliance [with the
    entry of the February 19, 1993 order] was too late, as the trial court lost jurisdiction on
    February 12, 1993, when the defendant filed the notice of appeal.” Id. at 837-38; see also
    State v. Irwin, 
    962 S.W.2d 477
    , 479 (Tenn. 1998) (concluding that an order setting out the
    certified question of law which was entered after the filing of the notice of appeal failed to
    comply with Preston and Rule 37).
    In this case, Gibson’s October 19, 2010 judgment form did not state the certified
    question, nor did it refer to a document stating the question. Gibson filed a notice of appeal
    with this court on November 1, 2010. The order reserving and stating the certified question
    was filed on November 18, 2010. Because the notice of appeal was filed prior to the order
    -3-
    stating the certified question, Gibson failed to comply with the requirements of Rule 37 and
    State v. Pendergrass. To the extent that the order operated to amend the October 19
    judgment, it was a nullity. The trial court no longer had jurisdiction to amend the judgment
    once Gibson filed his notice of appeal. See Pendergrass, 937 S.W.2d at 837; see also State
    v. Frank Randall Snowden, No. W2005-01851-CCA-R3-CD, 
    2006 WL 1303946
    , at *2
    (Tenn. Crim. App., at Jackson, May 11, 2006) (stating that “the attempt to cure the defect in
    the judgment with a supplemental order was a nullity” because the order was filed after the
    notice of appeal, and the trial court no longer had jurisdiction); State v. Ruiz, No. M2000-
    03221-CCA-R3-CD, 
    2001 WL 1246397
    , at *3 (Tenn. Crim. App., at Nashville, Oct. 17,
    2001) (“[T]he order containing the certified questions was entered after the defendant filed
    his notice of appeal; therefore the trial court no longer had jurisdiction to cure the flaws in
    the appeal.”). Accordingly, this Court is without jurisdiction to consider the question
    presented for our review, and the appeal is dismissed.
    CONCLUSION
    We conclude that Gibson did not properly reserve his certified question of law under
    Rule 37(b)(2)(A). Accordingly, the appeal is dismissed.
    ______________________________
    CAMILLE R. McMULLEN, JUDGE
    -4-
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    STATE OF TENNESSEE v. JUSTIN GIBSON
    Circuit Court for Williamson County
    No. II-CR124574
    No. M2010-02361-CCA-R3-CD - Filed December 28, 2011
    ORDER
    The opinion previously filed in this matter on November 22, 2011, is hereby
    VACATED and the opinion filed contemporaneous with this order is substituted in lieu
    thereof .
    IT IS SO ORDERED.
    PER CURIAM
    

Document Info

Docket Number: M2010-02361-CCA-R3-CD

Judges: Judge Camille R. McMullen

Filed Date: 12/28/2011

Precedential Status: Precedential

Modified Date: 3/3/2016