State of Tennessee v. Carl F. Neer ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 25, 2001
STATE OF TENNESSEE v. CARL F. NEER
Appeal from the Criminal Court for Anderson County
No. 99CR0252 James B. Scott, Jr., Judge
No. E2000-02791-CCA-R3-CD
October 8, 2001
The defendant, Carl F. Neer, pleaded guilty in the Anderson County Criminal Court to a fourth-
offense possession of marijuana, a Schedule VI controlled substance, and attempted to appeal a
certified question of law. Because we are constrained to conclude that he has not properly presented
his certified question, we dismiss the appeal.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed; Appeal Dismissed.
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and ROBERT W. WEDEMEYER , JJ., joined.
Ann D. Kress Coria, Clinton, Tennessee, for the Appellant, Carl F. Neer.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,
for the Appellee, State of Tennessee.
OPINION
On October 6, 2000, the defendant and the state filed a plea agreement in which the
defendant accepted a Range I, two-year incarcerative sentence in exchange for the dismissal of three
other drug-related counts in the indictment. The agreement also provided,
This plea is entered reserving the following certified question of law:
whether evidence gathered as a result of a search warrant should have
been suppressed[. I]f this evidence were suppressed, the State would
not have proof for trial. The specifics regarding the certified question
of law have been set forth in paperwork filed and entered with the
Court this day [, October 6, 2000].
The only other “paperwork” filed on October 6, 2000 relative to the conviction offense was the
conviction judgment. It set forth the terms of the conviction and sentence and, regarding the certified
question reservation, stated, “This plea is entered reserving the following certified question of law:
Whether evidence gathered as a result of the search warrant should have been suppressed; if evidence
were suppressed the State would not have proof for trial.” There was no reference to other
“paperwork” in the judgment.
On October 10, 2000, the defendant filed his notice of appeal to this court. Then on
October 16, 2000, the trial court executed and entered an order which approved an appeal of the
following certified question of law:
On or about December 29, 1999, the Defendant filed a Motion to
Suppress drugs that were seized from the Defendant’s residence, on
the basis that the search and seizure was unreasonable and illegal, in
violation of the Fourth Amendment to the United States Constitution
and Section 7 of . . . Article 1 of the Tennessee Constitution, as well
as statutes and laws of Tennessee. The seizure of these drugs resulted
in the instant charges of which Defendant stands accused.
Specifically, Defendant contended that the search was conducted with
an illegal search warrant, and that the affiant made a false statement,
either recklessly or intentionally to deceive the Court, in the search
warrant affidavit such that the affidavit is insufficient to support
probable cause and/or the affidavit is void.
The order recounted the trial court’s denial of the suppression motion and acknowledged that the
defendant reserved a certified question of law as part of his plea agreement, that the trial court and
the state agreed to the reservation, and that the court, the defendant, and the state agreed that the
certified question of law would be dispositive of the case. The order was signed by counsel for both
the defendant and the state.
The record supporting the reservation of the certified question of law consists of the
above elements. The record also contains a transcript of the suppression hearing, to which is
exhibited the authenticated search warrant and affidavit that was the subject of the suppression
motion.
Regarding the defendant’s attempt to reserve a certified question of law pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2)(i), this case must be added to the growing heap of
appellate fatalities that have resulted when would-be appellants failed to heed the Preston-
Pendergrass litany of requirements for certified-question appeals. In State v. Pendergrass, our
supreme court “emphasized” that:
[r]egardless of what appeared in prior petitions, orders, colloquy in
open court or otherwise, the final order or judgment from which the
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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 and state 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 is dispositive of the case. . . .
Also, the order must state that the certified question was expressly
reserved as 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.
Of course, the burden is on defendant to see that the record brought
to the appellate court 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.
State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996) (quoting State v. Preston, 759 S.W.2d
647, 650 (Tenn. 1988)) (emphasis supplied in Pendergrass); see State v. Lillie Fran Ferguson, No.
W2000-01687-CCA-R3-CD, slip op. at 4-5 (Tenn. Crim. App., Jackson, Apr. 27, 2001) (lamenting
general, widespread failure to comply with Preston-Pendergrass and citing cases in which court of
criminal appeals has dismissed certified-question appeals).
In the present case, the trial court’s judgment of conviction arguably contains
affirmations that the certified question “was expressly reserved as part of the plea agreement” and
that the parties and the trial judge were “of the opinion that the question is dispositive of the case.”
Also, the consent of the parties and of the trial court to the reservation of the certified question is
arguably inferred from the signatures of the assistant district attorney general and counsel for the
defendant and the effectuating signature of the trial judge. On the other hand, the judgment fails to
articulate the scope of the certified question and “the limits of the legal issue reserved.” It states no
“reasons relied upon by defendant in the trial court at the suppression hearing.”
Failure to identify the scope of the certified question is fatal to the Rule 37(b)(2)(i)
appeal. State v. Calvin T. Barham, No. W2000-00871-CCA-R3-CD, slip op. at 2-3 (Tenn. Crim.
App., Jackson, May 15, 2001) pet. for perm. app. filed (Tenn. July 11, 2001); State v. Danny Harold
Ogle, No. E2000-00421-CCA-R3-CD, slip op. at 3-4 (Tenn. Crim. App., Knoxville, Jan. 17, 2001),
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perm. app. denied (Tenn. 2001). To be sure, the final judgment may accomplish the purpose of fully
stating the certified question by incorporating into the judgment the terms of another document by
making reference to that document. Lillie Fran Ferguson, slip op. at 3; State v. Andrea McCraw,
No. 03C01-9903-CR-00106, slip op. at 4 (Tenn. Crim. App., Knoxville, Mar. 7, 2000) perm. app.
denied (Tenn. 2000). The judgment in the present case, however, fails to refer to or incorporate the
October 16 order or any other order or document.
Moreover, we may not treat the October 16, 2000 order as an amendment of the final
judgment. The notice of appeal to this court was filed before October 16, 2000. Once a timely
notice of appeal has been filed, “the trial court loses jurisdiction.” Pendergrass, 937 S.W.2d at 837.
“Once the trial court loses jurisdiction, it generally has no power to amend its judgment.” Id. In
effect, the October 16 order is a nullity. See id.; Calvin T. Barham, slip op. at 2-3. Moreover,
“jurisdiction to modify a final judgment cannot be grounded upon waiver or agreement by the
parties.” State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991); State v. Wilkes, 684
S.W.2d 663, 667 (Tenn. Crim. App. 1984).
This court has stressed that the Preston-Pendergrass requirements are jurisdictional.
Danny Harold Ogle, slip op. at 4. “Failure to properly reserve a certified question of law pursuant
to Preston will result in the dismissal of the appeal.” Calvin T. Barham, slip op. at 2.
Based upon the strictures governing certified-question appeals as mandated by our
supreme court and repeatedly explained and applied by this court, and based upon the defendant’s
failure to comply with those strictures, we dismiss the appeal.
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JAMES CURWOOD WITT, JR., JUDGE
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