State of Tennessee v. Nicholas Larsen

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 14, 2012
STATE OF TENNESSEE v. NICHOLAS LARSEN
Appeal from the Criminal Court for Shelby County
No. 09-07640 Lee V. Coffee, Judge
______________________
No. W2011-00976-CCA-R3-CD - Filed July 13, 2012
______________________
The Defendant-Appellant, Nicholas Larsen, entered a guilty plea to driving under the
influence of an intoxicant (DUI), a Class A misdemeanor, after the trial court denied his
motion to dismiss the indictment. The transcript from the guilty plea hearing indicates that
Larsen attempted to reserve a certified question of law on appeal pursuant to Tennessee Rule
of Criminal Procedure 37. Although the judgment form references an attachment setting out
Larsen’s certified question of law, no such attachment appears in the appellate record.
Moreover, the record contains no corrective order filed prior to the filing of the notice of
appeal in this case. Because Larsen failed to properly reserve a certified question, the appeal
is dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J OHN E VERETT W ILLIAMS, J., joined.
Blake D. Ballin, Memphis, Tennessee, for the Defendant-Appellant, Nicholas Larsen.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Susan L. Taylor, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Background. On March 15, 2009, Larsen was issued misdemeanor citations for
DUI and reckless driving before he was transported to a hospital for treatment. Larsen
reported to the jail for booking and processing on March 30, 2009, and reported to general
sessions court on April 13, 2009, for his arraignment. Following his arraignment, Larsen
appeared in court on May 15, 2009, and his case was reset to July 13, 2009. On July 13,
2009, Larsen again appeared before the general sessions court, where he was taken into
custody and his bond set at $1,000, an amount consistent with that court’s standing order
regarding the minimum bond amount in all DUI cases. Larsen claimed that there was no
bond hearing and that the court asked him no questions prior to setting his bond at $1,000.
He asserted that after he had been in custody for approximately twenty-four hours, he posted
the $1,000 bond. Larsen’s case was subsequently bound over to the grand jury, who issued
an indictment charging him with DUI, DUI with a blood alcohol concentration of .08% or
more, and reckless driving.
On April 19, 2010, Larsen filed a motion to dismiss the indictment alleging that the
time he spent in custody prior to posting the $1,000 bond violated his right against double
jeopardy. We note that the appellate record contains no written order granting or denying
Larsen’s motion to dismiss. However, the transcript from the motion hearing shows that the
trial court denied the motion to dismiss because it found that requiring a defendant to post
bond after being released on a citation was not punishment and, therefore, did not violate
double jeopardy protections. On April 19, 2011, Larsen filed a petition to waive a jury trial
and enter a plea of guilty pursuant to a plea agreement with the State. Neither the petition
requesting the court’s acceptance of the guilty plea nor the order granting the guilty plea
mentioned the fact that Larsen was entering a conditional guilty plea while reserving a
certified question of law on appeal. However, the transcript from the plea submission
hearing shows that Larsen asked the court to accept his guilty plea to DUI while attempting
to reserve a certified question of law.
The underlying facts of the Larsen’s offense were stipulated at the guilty plea hearing:
That on March 15th [sic], 2009, officers received a call from Rock Cuba
(phonetic) . . . regarding an accident with injuries.
The defendant was found to be the driver of one vehicle and the only
person on the scene with head injuries.
He had a strong odor of alcohol coming from his person; he was
unsteady on his feet.
[He had s]low and slurred speech[.]
Red[,] blood-shot eyes.
He admitted to drinking beer.
-2-
He was issued this citation.
An ambulance did come and transported the defendant to the [Regional
Medical Center at Memphis] in stable condition.
A whiskey unit made the scene at the [hospital,] and the defendant
consented to [having his] blood draw[n]. . . .
All of these events did occur here in Shelby County, Tennessee.
The trial court, after questioning Larsen about the rights he would be waiving by
entering a plea of guilty, made the following statement:
Now, by entering that guilty plea, Mr. Larsen, you’re giving up – you’re
waiving your rights to a trial by jury; but you are preserving, for appeal, this
certified question as to whether or not this indictment against you should have
been dismissed. We had a hearing on February 25th [sic], 2011; and after a
hearing, I denied your motion[,] and you’re preserving that issue for an appeal.
The court also reminded Larsen that none of the conditions of his sentence would begin until
the Tennessee Court of Criminal Appeals affirmed the trial court’s judgment.
The court added:
Now, part of this agreement is that the motion to [dismiss] that the court
did deny will be certified . . . to the Court of Criminal Appeals; and the Court
of Criminal Appeals will decide – both sides – all sides having stipulated – that
[the decision of] the Court of Criminal Appeals . . . will be dispositive of this
indictment; and you’re certifying that question as to whether or not the court
should have granted your motion to [dismiss].
At the conclusion of the hearing, the trial court accepted Larsen’s apparent conditional
guilty plea to DUI. The judgment form for this conviction, which was entered on April 19,
2011, contained the following language in the Special Conditions section: “See attachment
to this judgment sheet regarding Certified Question [Driver’s License] revoked 1 year.” The
judgment form also indicated that the court entered a nolle prosequi without court costs for
counts two and three of the indictment. We note that no attachment or amended order
regarding a certified question of law is contained within the appellate record. On April 20,
2011, Larsen filed a timely notice of appeal.
-3-
ANALYSIS
On appeal, Larsen contends that his time in custody prior to posting his $1,000 bond
was so punitive as to violate his right against double jeopardy as stated in the United States
Constitution and Tennessee Constitution. U.S. Const. amend. V; Tenn. Const. art I, § 10.
The State does not argue that Larsen failed to properly reserve a certified question of law on
appeal. Instead, the State concedes that the certified question is dispositive of the case but
argues that the question must be decided in the State’s favor. The State also argues that
although Larsen attempts to attack the statutory validity and constitutionality of the general
sessions court’s standing order regarding the minimum amount of bond to be set in DUI
cases, these issues were not included in the trial court’s order and were not properly certified
under Tennessee Rule of Criminal Procedure 37. Because Larsen failed to properly reserve
his certified question of law, this appeal is dismissed.
Tennessee Rule of Criminal Procedure 37(b)(2)(A) allows for an appeal from any
order or judgment on a conditional plea of guilty or nolo contendere if the defendant
reserves, with the consent of the state and the court, the right to appeal a certified question
of law that is dispositive of the case, so long as the following four requirements are met:
(i) the judgment of conviction or other document to which such judgment
refers that is filed before the notice of appeal, contains a statement of the
certified question of law that the defendant reserved for appellate review;
(ii) the question of law is stated in the judgment or document so as to identify
clearly the scope and limits of the legal issue reserved;
(iii) the judgment or document reflects that the certified question was expressly
reserved with the consent of the state and the trial court; and
(iv) the judgment or document reflects that the defendant, the state, and the
trial court are of the opinion that the certified question is dispositive of the
case[.]
Tenn. R. Crim. P. 37(b)(2)(A) (amended July 1, 2011). The Tennessee Supreme Court
clearly outlined the requirements for reserving a certified question of law in State v. Preston:
Regardless of what has appeared in prior petitions, orders, colloquy in open
court or otherwise, 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
-4-
question of law must be stated so as to clearly identify the scope and the limits
of the legal issue reserved. For example, where questions of law involve the
validity of searches and the admissibility of statements and confessions, etc.,
the reasons relied upon by defendant in the trial court at the suppression
hearing must be identified in the statement of the certified question of law and
review by the appellate courts will be limited to those passed upon by the trial
judge and stated in the certified question, absent a constitutional requirement
otherwise. Without an explicit statement of the certified question, neither the
defendant, the State nor the trial judge can make a meaningful determination
of whether the issue sought to be reviewed is dispositive of the case. Most of
the reported and unreported cases seeking the limited appellate review
pursuant to Tenn. R. Crim. P. 37 have been dismissed because the certified
question was not dispositive. Also, 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. Of course, the
burden is on defendant to see that these prerequisites are in the final order and
that the record brought to the appellate courts contains all of the proceedings
below that bear upon whether the certified question of law is dispositive and
the merits of the question certified. No issue beyond the scope of the certified
question will be considered.
759 S.W.2d 647, 650 (Tenn. 1988) (emphasis added). As the Tennessee Supreme Court
stressed, “Preston puts the burden of reserving, articulating, and identifying the issue upon
the defendant.” State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). Although
corrective orders are permissible where a certified question has been omitted from a
judgment, such orders must be filed while the trial court retains jurisdiction. State v.
Armstrong, 126 S.W.3d 908, 912-13 (Tenn. 2003) (concluding that “the trial court’s
corrective nunc pro tunc order entered after the final judgment while the trial court had
jurisdiction and before the filing of a notice of appeal under Rule 36 of the Tennessee Rules
of Criminal Procedure complied in all respects with the prerequisites for raising a certified
question of law on appeal”); State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998) (stating that
a judgment may refer to, or incorporate, an independent document, thereby satisfying the
requirements of Preston). Once a notice of appeal is filed, the jurisdiction becomes vested
in the appellate court, and the trial court may not amend its judgment. Pendergrass, 937
S.W.2d at 837.
Here, the record contains neither an attachment to the judgment form nor a corrective
order reserving the certified question of law on appeal that was filed prior to the notice of
appeal. Consequently, Larsen failed to comply with any of the four requirements outlined
-5-
in Rule 37(b)(2)(A). Because the judgment form in this case failed to include a statement
of the certified question, either by inclusion or by incorporation by reference, Larsen failed
to properly reserve his certified question of law pursuant to Preston. Accordingly, the appeal
is dismissed.
CONCLUSION
Upon review, we conclude that Larsen failed to properly reserve a certified question
of law on appeal. Accordingly, the issue is not properly before this court, and the appeal is
dismissed.
______________________________
CAMILLE R. McMULLEN, JUDGE
-6-