State v. Sluder ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1996 SESSION
February 12, 1997
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 03-C-01-9509-CC-00272
)
) Morgan County
v. )
) E. Eugene Eblen, Judge
)
) (Possession of Marijuana while an Inmate
) in a Correction Institution)
BENNY SLUDER, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Walter B. Johnson, II Charles W. Burson
Assistant Public Defender Attorney General & Reporter
P.O. Box 334 500 Charlotte Avenue
Harriman, TN 37748 Nashville, TN 37243-0497
OF COUNSEL: Eugene J. Honea
Assistant Attorney General
Joe H. Walker 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
P.O. Box 334
Harriman, TN 37748 Charles E. Hawk
District Attorney General
P.O. Box 703
Kingston, TN 37763
Frank A. Harvey
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763
OPINION FILED:_________________________________
APPEAL DISMISSED
Joe B. Jones, Presiding Judge
OPINION
The issue this Court must resolve is whether the appellant, Benny Sluder, is entitled
to maintain this appeal after he failed to comply with the requirements of Rule 37(b)(2),
Tennessee Rules of Criminal Procedure and State v. Preston, 759 S.W.2d 647 (Tenn.
1988) until approximately eight (8) months after the entry of the judgment. After a thorough
review of the record, the briefs of the parties, and the authorities which govern this issue,
it is the opinion of this Court the appellant's appeal must be dismissed.
On the 18th day of May, 1992, the Morgan County Grand Jury returned an
indictment charging the appellant with the possession of marijuana while an inmate in a
correctional institution. Tenn. Code Ann. § 39-16-201. The offense allegedly occurred on
January 18, 1992.
The appellant entered a plea of guilty on October 12, 1994. The trial court
sentenced the appellant pursuant to a plea bargain agreement. It was agreed the
appellant was a Range III persistent offender, his punishment should be confinement for
ten (10) years in the Department of Correction, and the sentence was to be served
consecutively to the sentences he was serving when he committed the offense. The trial
court's judgment was entered February 15, 1995.
The record establishes the appellant made no effort to preserve any issues for
appellate review when he entered the plea of guilty. The first indication the appellant was
going to file a supplement appears in his brief, which was filed with the clerk on November
20, 1995. The introduction portion of the brief states:
This record presents an appeal by agreement of a certified
question of law pursuant to TRAP [sic] 37(b)(2)(I) by Benny
Sluder from the Judgment of the Court dated February 15,
1995. . ., to be amended and supplemented in the record
pursuant to TRAP 24.
The State of Tennessee filed its brief on January 18, 1996. The state contends in
its brief the appellant's appeal should be dismissed because he failed to preserve the
issues he presents for review pursuant to the requirements of Tenn. R. Crim. P. 37(b)(2)(i)
and State v. Preston, supra. The supplement to the record was not filed with the clerk of
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this Court until February 1, 1996. This portion of the record contains an order entered on
November 20, 1995, which seeks to amend the trial court's judgment of February 15, 1995.
This "Amended Order" states in part:
The parties agree and the Court concurs that the issues of the
Motion to Dismiss filed by the Defendant, specifically the
selective prosecution of the Defendant and the violation of the
Defendant's right to a speedy trial, is to be preserved for
appeal purposes. To this end the parties agree that these
issues are case dispositive pursuant to Tenn. R. Crim. P.
37(b)(2)(i).
This case is governed by the recent Supreme Court opinion in State v. Pendergrass,
_____ S.W.2d _____ (Tenn. 1996). In Pendergrass, the judgment was final when the trial
court attempted to amend it to grant the appellant the right to appeal a certified question
of law dispositive of the prosecution. Our Supreme Court held a trial court may not amend
a final judgment to accomplish this purpose.
Since the judgment entered after the sentencing hearing did not provide the right
of the appellant to appeal a certified question of law dispositive of the prosecution, the
appeal must be dismissed.
_____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
________________________________________
PAUL G. SUMMERS, JUDGE
________________________________________
DAVID G. HAYES, JUDGE
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