State v. Tallent ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1998 July 7, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9703-CR-00086
)
Appellee, )
)
) MONROE CO UNTY
VS. )
) HON. CARROLL ROSS
RALPH TALLENT, ) JUDGE
)
Appe llant. ) (DUI)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF MONROE COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES L. BEACH JOHN KNOX WALKUP
365 Market Street Attorney General and Reporter
Clinton, TN 37716
TIMOTHY F. BEHAN
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
JERRY N. ESTES
District Attorney General
RICHARD NEWMAN
Assistant District Attorney General
P.O. Box 647
Athens, TN 37303
OPINION FILED ________________________
APPEAL DISMISSED
JERRY L. SMITH, JUDGE
OPINION
A Monroe County grand jury indicted Appellant, Ralph Tallent, with charges of
Driving Under the Influence. Appellant filed a motion to suppress admission of the
breath test. After a hearing, Appellant’s motion was denied. Appellant then filed a
motion in limine to require the State to lay an appropriate foundation through the testing
officer before admitting the results of the breath tests. Appellant then pled guilty
pursuant to Rule 37 (b)(2)(i) of the Tennessee Rules of Criminal Procedure.
After a review of the record, we find that this appeal must be dismissed.
In State v. Preston, the Tennessee Supreme Court set out the perquisites for
consideration on the merits of a certified question of law pursuant to Rule 37(b)(2)(i).
1. The final order or judgment must contain statement of the dispositive question
of law reserved by defendant for appellate review;
2. The order must state that the certified question was expressly reserved as
part of a plea agreement;
3. The order must state that both the state and the trial judge have consented
to the reservation and are of the opinion that the question is dispositive of the case; and
4. The question of law must be stated so as to clearly identify the scope and the
limits of the legal issues reserved.
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State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988) (Accord State v. Harris, 919
S.W.2d 619 (Tenn. Crim. App. 1995); State v. Pendergrass, 937 S.W.2d 834 (Tenn.
1996)). In attempting to reserve a question of law, Defendant failed to properly follow
the procedure as set out in Preston. The judgment of the trial court reflects that
Defendant plead guilty subject to a Rule 37(b) appeal, but fails to set out the question
as required under part (i) of the Preston procedure. Further, the order does not contain
any indication by either the trial court or the State that the question raised by Defendant
is dispositive of this matter.1
Accordingly, this appeal is dismissed pursuant to Rule 20 of the Court of Criminal
Appeals Rules.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
THOMAS T. WOODALL, JUDGE
___________________________________
WILLIAM B. ACREE, JUDGE
1
It appears from the record that Appellant conceded in the trial court that the State had evidence
of his guilt other than the results of the breath alcohol test. It is highly questionable therefore whether the
issue presented herein can fairly be characterized as dispositive of this case.
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