State v. Applegate

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1997 SESSION
March 17, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * Appellate Court Clerk
C.C.A. # 01C01-9608-CR-00370
Appellee, * DAVIDSON COUNTY
VS. * Hon. Frank G. Clement, Jr., Judge
ALTON B. APPLEGATE, * (DUI)
Appellant. *
For Appellant: For Appellee:
Justin Johnson, Attorney Charles W. Burson
Suite 205 Attorney General and Reporter
2131 Murfreesboro Road
Nashville, TN 37217 Daryl J. Brand
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Bernard McEvoy
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
OPINION FILED:__________________________
APPEAL DISMISSED; JUDGMENT OF TRIAL COURT AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Alton B. Applegate, was indicted by the Davidson
County Grand Jury for driving under the influence of an intoxicant, third offense.
Thereafter, the defendant pled guilty to DUI, second offense. The trial court
imposed a sentence of eleven months and twenty-nine days in jail, all of which was
suspended except for forty-five days. The defendant was prohibited from driving for
two years and required to perform one hundred hours of public service, enter an
alcohol treatment program, and submit to other conditions. The defendant
attempted to reserve a certified question of law for appeal. See Tenn. R. Crim. P.
37(b)(2). Because he failed to comply with the mandatory requirements of Rule
37(b)(2), as interpreted in State v. Preston, 759 S.W.2d 647 (Tenn. 1988), and as
confirmed in State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996), we must dismiss
the appeal.
On May 23, 1995, Metro Police Department Officers John Tankersley
and Harold Taylor established a roadblock to control traffic on a closed portion of
Smith Springs Road. Signs on a barricade indicated that the road was closed to all
but local traffic. The officers attempted to stop all of the vehicles to determine "if
they were local." Citations were issued for drivers who passed through the closed
roadway in violation of the restriction.
The defendant was stopped as he attempted to pass through the
signage at approximately 6:15 P.M. Officer Tankersley flagged down the defendant,
asked for his license, and smelled alcohol when questioning him as to his use of the
road. The defendant was charged with DUI.
Prior to trial, the defendant filed a motion to suppress evidence of his
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intoxication on the basis that there was no probable cause for his arrest. The trial
court ruled that the stop was, in fact, based on probable cause and ruled the
evidence admissible. Defense counsel then remarked that "it may be for a point of
certifying the issue for appeal."
Sometime later, on March 14, 1996, the trial court entered a judgment
accepting the defendant's guilty plea to DUI, second offense; the form provides that
the "case [is] pending appeal." On April 11, 1996, the defendant filed a notice of
appeal that contained the following language:
[The defendant] appeals to the Court of Criminal
Appeals, pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2)(i), the certified question of law ... that
was agreed to with the consent of the State and the
Court and that was included in the Defendant's plea
bargain agreement accepted by the Court on March 14,
1996.
Seven days after the filing of the notice, the trial court entered an order
providing as follows:
This cause came on to be heard on March 14,
1996 at which time the defendant entered into a plea
agreement with the Assistant District Attorney, pursuant
to Tennessee Rule of Criminal Procedure 37(b)(2)(i)
reserving a question of law for appeal.
The certified question was expressly reserved as
part of the plea agreement, and the Assistant District
Attorney General and the Trial Judge consented to the
reserved issue and are of the opinion that the question is
dispositive of the case.
The certified question is stated as follows:
"Whether the statements given by the defendant and the
subsequent evidence obtained therefrom was the
product of an illegal stop/seizure/arrest of the defendant
... and whether this evidence should be suppressed."
The state now submits that the defendant failed to properly preserve
the certified question of law. We must agree. In Preston, 759 S.W.2d at 650, our
supreme court established prerequisites to any consideration of a certified question
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of law:
Regardless of what has appeared in prior petitions,
orders, colloquy in open court or otherwise, the final
order of 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. 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 .... Also, the order must state that the
certified question was expressly reserved as a part of the
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 .... No issue beyond the scope of
that certified question will be considered.
(Emphasis added).
In this case, the judgment form does not comply with the requirements
of Preston. The order entered a week after the notice of appeal is insufficient to
cure the defect. Pendergrass, 937 S.W.2d at 834. These circumstances are
indistinguishable from those in Pendergrass. In that case, the judgment entered
made no reference to a certified question of law. The subsequent notice of appeal
referred to "'Rule 37.'" Id. at 835. A week after the filing of the notice of appeal, the
trial court entered an order "purporting to note the appeal of a certified question of
law." Id. The Court of Criminal Appeals found the late entered order constituted
"substantial compliance." Id. at 836. Our supreme court disagreed and dismissed
the appeal:
As a general rule, a trial court's judgment becomes final
thirty days after its entry unless a timely notice of appeal
or a specified post-trial motion is filed. The jurisdiction of
the Court of Criminal Appeals attaches upon the filing of
the notice of appeal and, therefore, the trial court loses
jurisdiction. Once the trial court loses jurisdiction, it
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generally has no power to amend its judgment. Indeed, it
is well-settled that a judgment beyond the jurisdiction of a
court is void.... The attempt at compliance was too late,
as the trial court lost jurisdiction ... when the defendant
filed the notice of appeal.
Id. at 837-38 (emphasis added)(citations omitted).
Accordingly, the appeal must be dismissed and the judgment of the
trial court must be affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
Curwood Witt, Judge
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