State v. Cleophes Carter

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
FILED
September 10, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9603-CR-00083
Appellee, )
) SHELBY COUNTY
VS. )
) HON. JAMES C. BEASLEY, JR.,
CLEOPHES CARTER, ) JUDGE
)
Appellant. ) (Certified Question of Law)
CONCURRING OPINION
I concur fully in the results reached by the author in his opinion. However,
I concur in results only because of the defendant’s failure to comply with the guidelines
set out in State v. Preston, 759 S.W.2d 647 (Tenn. 1988), and reaffirmed in State v.
Pendergrass, 937 S.W.2d 834 (Tenn. 1996). I note that the defendant was represented
by counsel at the time his plea was entered, and the trial court expressly advised the
defendant “if you decide you want to appeal your matter: you have a right to do so under
the guidelines of 37(b)(i).” This advice by the trial judge was after the defendant had
previously indicated his desire to appeal the search issue and his desire to represent
himself. The transcript also indicates that the defendant had entered, on the guilty plea
form, “37(b)(2)(i).”1
The defendant was represented by counsel at the time he entered his plea
but chose to represent himself on appeal. There is no order in the record indicating that
1
This sec tion of the Rules of Crim inal Procedure provides for an appeal, after a guilty plea, of a
certified question of law.
a certified question was reserved at the time of his plea, even though this matter was
discussed and the trial judge advised the defendant it would have to be done timely and
properly. For this reason, I would dismiss the appeal for failure to comply with the
requirements of Preston.
______________________________
JOHN H. PEAY, Judge
2