State v. Christopher Karvey ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 15, 2000 Session
STATE OF TENNESSEE v. CHRISTOPHER KARVEY
Appeal as of Right from the Criminal Court for Davidson County
No. 99-T-11 Seth Norman, Judge
No. M1999-02590-CCA-R3-CD - Filed November 17, 2000
The defendant entered a plea of guilty to DUI, and attempted to reserve a certified question of law
pursuant to Tenn. R. Crim. P. 37(b)(2)(i). The defendant contends that the stop of his vehicle by
police was illegal and that all evidence obtained as a result thereof must be suppressed. Because the
defendant failed to properly reserve the certified question, the appeal is dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court of Davidson
County is Affirmed; Appeal Dismissed.
JERRY L. SMITH, J., delivered the opinion of the court, in which JOE G. RILEY, J. and L. TERRY
LAFFERTY, SR.J., joined.
V. Michael Fox, Nashville, Tennessee, attorney for the appellant, Christopher Karvey.
Paul G. Summers, Attorney General & Reporter, Elizabeth T. Ryan, Assistant Attorney General and
Victor S. Johnson, District Attorney General, T. J. Haycox, Assistant District Attorney, attorneys for
the appellee, State of Tennessee.
OPINION
Factual Background
The record reflects that the defendant was stopped in Nashville by a Metro Police Officer for
a traffic violation. The basis for the stop was that the defendant failed to use a turn signal while
changing lanes twice and sped through a yellow light. After stopping the defendant, the officer
observed that the defendant had been drinking. After submitting to a breathalyser test, the defendant
was arrested for DUI.
The defendant filed a motion to suppress the evidence obtained as a result of the stop. The
basis of the motion was that under State law, the defendant was not required to make a turn signal
because there were no other vehicles at the intersection. See Tenn. Code Ann. §§ 55-8-140, -142,
-143. The defendant argued that the Metro ordinance, which requires a turn signal for all turns,
conflicts with the State statutes and is unconstitutional. He further argued that because the ordinance
was unconstitutional, the stop made by the officer was unlawful. The trial court denied the motion
to suppress.
The defendant later entered a plea of guilty to DUI and attempted to reserve a certified
question of law for appeal as a condition of his guilty plea under Tenn. R. Crim. P. 37(b)(2)(i). The
defendant undertook to reserve the question by writing it on the bottom of the plea agreement, and
referring to the plea agreement in the judgment.
Certified Question of Law
The defendant has failed to properly certify the question of law. Tenn. R. Crim. P. Rule
37(b)(2)(i) provides that an appeal lies upon a plea of guilty if 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. In State v. Preston, 759
S.W.2d 647 (Tenn.1988), the Supreme Court set forth the requirements for reserving a certified
question of law pursuant to this rule. Preston requires that "the final order or judgment from which
the time begins to run to pursue a [Tenn. R. App. 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 limits of the legal issue.” Preston, 759
S.W.2d at 650. In this case, the question that the defendant attempted to reserve is not the question
he has presented on appeal. The question, as stated in the plea agreement, was as follows: “Did the
arresting officer officer [sic] have probable cause to believe that a traffic violation had occurred
when the defendant changed traffic lanes twice?” However, on appeal, he argues that Metro
Ordinance § 12.16.110, which requires the use of turn signals before changing lanes, is
unconstitutional because it conflicts with Tenn. Code Ann. §§ 55-8-142, -143, which do not require
the use of turn signals unless traffic dictates otherwise.
The appeal also fails for a second reason. Preston requires that "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." Preston, 759 S.W.2d at 650. In this case, final order did not
state that the certified question was expressly reserved as a part of the plea agreement, that the State
and the trial judge consented to the reservation, and that the State and trial judge are of the opinion
that the question is dispositive of the case. See id.
Although the defendant attempted to correct his oversight by incorporating a supplemental
order, the attempted correction was too late. As the Supreme Court noted, “[t]he 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. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996)(citing State v.
Peak, 823 S.W.2d 228, 229 (Tenn. Crim. App. 1991)). In this case, the defendant filed his notice
of appeal on October 19, 1999, and the trial court’s “order to correct or modify the record” was filed
on July 14, 2000. As the Court noted in Pendergrass, “The requirements of Preston are clear. The
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defendant failed to satisfy those requirements. The attempt at compliance was too late, as the trial
court lost jurisdiction . . . .” Pendergrass, 937 S.W.2d at 837-38.
Accordingly, this appeal is dismissed.
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JERRY SMITH, JUDGE
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