State v. Nickey & Janice Duncan ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION
STATE OF TENNESSEE, )
)
Appellee, ) C. C. A. NO. 02C01-9712-CC-00476
)
vs. ) GIBSON COUNTY
JANICE FAY DUNCAN and
)
) NO. 15412
FILED
NICKY LYNN DUNCAN, )
) May 7, 1998
Appellants. )
Cecil Crowson, Jr.
Appellate C ourt Clerk
ORDER
The appellants in this case pled guilty to simple possession of marijuana
and were sentenced to eleven months and twenty-nine days and fined $350. It appears
the appellants were placed on probation after serving fifteen days in the county jail.
Prior to entering the guilty pleas, the appellants filed a motion to suppress all evidence
obtained from the search of their residence. After a hearing, the trial court denied the
motion. The appellants have attempted to reserve the right to appeal the suppression
issue. Based upon our review of the entire record before the Court, including the briefs
of the parties, we affirm the judgment of the trial court pursuant to Rule 20, Rules of the
Court of Criminal Appeals.
In State v. Preston, 759 S.W.2d 647, 650 (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. It is the defendant's
responsibility to 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 appellants 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. “[T]he judgments do not contain an identification of the
scope and limits of the legal issue reserved as required. Nor do the judgments contain
any statement in satisfaction of the reservation requirements, nor do they contain any
statement that the question is dispositive, all explicitly required by Preston." State v.
Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996). As our Supreme Court has stated,
these “mandatory” requirements are “unambiguous.” Id. In addition, these
requirements apply “regardless of what has appeared in prior petitions, orders, colloquy
in open court or otherwise.” Preston, 759 S.W.2d at 650. Nevertheless, the appellants
have not included in the record the state’s response to their motion, a copy of the
transcript of the suppression hearing, or any relevant order of the trial court. Contrary
to the appellants’ position that they did not want to “clutter[] the record with unnecessary
material,” this Court cannot review the ruling of the trial court if the nature of the issue,
arguments thereon, and the trial court’s ruling and reasons are not included in the
record.
For these reasons, we are precluded from considering whether the trial
court properly denied the appellants’ motion to suppress. IT IS, THEREFORE,
ORDERED that the judgment of the trial court is affirmed pursuant to Rule 20,
Tennessee Court of Criminal Appeals Rules. Costs are taxed to the appellants.
Enter, this the ___ day of May, 1998.
______________________________
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JOHN H. PEAY, JUDGE
______________________________
PAUL G. SUMMERS, JUDGE
______________________________
THOMAS T. WOODALL, JUDGE
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