State v. Robert Fox ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
STATE OF TENNESSEE,
AT NASHVILLE
)
FILED
) C.C.A. NO. 01C01-9710-CC-00471
July 30, 1998
Appellee, )
) HUMPHREYS COUNTY
Cecil W. Crowson
VS. ) (No. 9156 Below)
Appellate Court Clerk
)
ROBERT FOX, ) The Hon. Allen W. Wallace
)
Appellant. ) (Certified Question of Law)
)
ORDER
This matter is before the Court upon the state’s Motion to Dismiss.
Specifically, the state contends that the appellant failed to properly certify the questions of
law raised in this appeal. The appellant opposes the motion. Upon reviewing the
pleadings and the entire record on appeal, we find that the appellant has failed to properly
reserve the right to appeal a certified question of law, and therefore, we dismiss the appeal.
The appellant pled guilty to possession of over 70 pounds of marijuana.
Under special conditions, the judgment states “[t]he Court’s rulings on pre-trial motions are
cetified [sic] for appeal as dispositive. It is understood that the defendant will file a notice
of appeal and receive a hearing on the merits of the appeal in the Court of Criminal
Appeals.” The judgment is signed by the trial judge and by the attorney for the state.
There are two pre-trial orders. One order overrules a motion to inquire whether
circumstances exist which would create the appearance that the court was not impartial,
and the other order denies the appellant’s motion to suppress. No specific issues
regarding the suppression are set forth in the order.
In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our Supreme Court held:
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
question of law must be stated so as to clearly identify the scope and the
limits of the legal issue reserved.
Id. at 650. See also, State v. Pendergrass, 937 S.W.2d 834, 837-38 (Tenn. 1996). It
appears that our Supreme Court relaxed the Preston requirements to some extent by
allowing a certified question to be incorporated in an independent document. See State
v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998).
In its motion to dismiss, the state contends that the appellant has failed to
comply with any of the requirements set forth in Preston. This conclusory statement is
overbroad. It is clear that the pre-trial orders were incorporated in the judgment and that
the trial court and the attorney for the state, by their signatures, consented to the
reservation of the issues raised in those orders and believed the issues to be dispositive
of the case. However, a “question of law must be stated so as to clearly identify the scope
and the limits of the legal issue reserved.” Preston, 759 S.W.2d 647, 650. Here, the
issues are not clearly stated in the judgment or in the pre-trial orders. Moreover, we are
unable to determine how the issue of whether the trial court erred by denying a motion to
recuse himself in this case could be dispositive.
Accordingly, after carefully reviewing the record and the pleadings in this
case, we find that the appellant has failed to properly reserve the right to appeal a certified
question of law in accordance with the requirements of Tenn. R. Crim. P. 37, and the
appeal is hereby dismissed. Costs are taxed to the appellant.
________________________________
DAVID H. WELLES, JUDGE
CONCUR:
________________________________
JERRY L. SMITH, JUDGE
________________________________
THOMAS T. WOODALL, JUDGE
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