IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
(Heard at Kingsport) FILED
February 23, 1998
FOR PUBLICATION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) Filed: February 23, 1998
)
Appellee, ) Hon. Rex Henry Ogle,
) Judge
Vs. )
) BLOUNT COUNTY
DOUGLAS BRIAN IRWIN, )
) Supreme Court
Appellant. ) No. 03-S01-9702-CC-00021
)
APPELLANT FOR APPELLEE:
Gerald C. Russell John Knox Walkup
125 E. Broadway Attorney General & Reporter
Maryville, Tennessee
Michael E. Moore
Solicitor General
Kathy M. Yacuzzo
Assistant Attorney General
425 Fifth Avenue, North
Nashville, Tennessee
Michael Flynn
District Attorney General
5th Judicial District
Maryville, Tennessee
Edward P. Bailey
Assistant District Attorney General
Maryville, Tennessee
OPINION
AFFIRMED. DROWOTA, J.
On June 7, 1993, the defendant was charged in a one count
indictment with contributing to the delinquency of a minor in violation of Tenn.
Code Ann. § 37-1-156 (1996 Repl. & Supp. 1997) as follows:
DOUGLAS BRIAN IRWIN, on the 18th day of December 1992, in
Blount County, Tennessee, and before the finding of this indictment,
did unlawfully contribute to the delinquency of [S.A.], a child under
18 years of age, by engaging in sexual intercourse with said child, all
of which is against the peace and dignity of the State of Tennessee.
On September 28, 1993, the defendant moved to dismiss the indictment “because
it does not charge a crime.” The next day, the defendant withdrew the motion to
dismiss and on December 14, 1993, entered a plea of guilty under the indictment.
The defendant attempted to reserve for appellate review pursuant to Tenn. R.
Crim. P. 37(b)(2)(I),1 the following question: “Would the act of this sexual
intercourse constitute the offense of contributing to the delinquency of a minor
under this indictment, number C7302?”
The trial court accepted the defendant’s guilty plea, but did not sentence
the defendant on the conviction. Indeed, no order was entered reflecting the trial
court’s acceptance of the plea agreement and the purported certified question of
law until the case was pending on appeal in the Court of Criminal Appeals. On
August 10, 1994, the trial court, with the permission of the Court of Criminal
Appeals, then filed an “Amended Order Accepting Plea of Guilty.” In that order,
1
Rule 37(b)(2)(I), Tenn. R. Crim. P., provides in pertinent part as follows:
(b) An appeal lies from any order or judgment in a criminal
proceeding where the law provides for such appeal, and from any
judg me nt of c onvic tion: (2 ) Upo n a ple a of g uilty or n olo
contendere if: (i) Defendant entered into a plea agreement under
Rule 11(e) but explicitly reserved with the consent of the state and
of the cour t the rig ht to a ppe al a ce rtified ques tion o f law th at is
dispositive of the ca se. . . .
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the certified question was set out and the trial court stated that a sentence would
be imposed after the intermediate court rendered its decision. However, the Court
of Criminal Appeals did not reach the merits of the certified question, but
concluded instead that it had no jurisdiction because no final judgment of
conviction had been entered since the trial court had neither ruled upon the merits
of the purported certified question, nor imposed a sentence on the conviction.
Accordingly, the appeal was dismissed.
The case went back to the trial court for sentencing, and on July 11, 1995,
the trial court entered a judgment imposing sentence for the defendant’s
conviction.2 The final judgment of conviction entered by the trial court did not
purport to set forth a certified question for review. Nonetheless, the defendant
sought to appeal to the Court of Criminal Appeals, and for statement of the
certified question, relied upon the August 10, 1994, order entered by the trial
judge which the Court of Criminal Appeals previously had held to be insufficient as
a final judgment of conviction.
This time, the Court of Criminal Appeals affirmed the judgment of the trial
court, noting that, unlike the allegation in the defendant’s withdrawn motion to
dismiss the indictment, the question purportedly certified for appeal did not assert
that the indictment failed to state a criminal offense. Instead, the certified
question asked the court to decide if the defendant is guilty of contributing to the
2
The defendant was sentenced to eleven months and twenty-nine days, all of which was
ordered to be served on supervised probation, ordered to perform three hundred hours of
community service, ordered to participate in sex counseling, and ordered to refrain from contacting
the vic tim o r her f am ily.
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delinquency of a minor based upon the facts stipulated by the parties. Quoting
from its prior decision, the intermediate court concluded that the stipulated facts
were inadequate to permit review, and further held that the defendant had waived
any complaint regarding the sufficiency of the indictment by withdrawing his
motion to dismiss.
Thereafter, we granted the defendant permission to appeal and, after
carefully reviewing the record, now conclude that the defendant failed to properly
reserve a certified question of law in accordance with Rule 37, Tenn. R. Crim. P.
Accordingly, we affirm the judgment of the Court of Criminal Appeals. 3
CERTIFICATION
Rule 37(b)(2)(i), Tenn. R. Crim. P., provides in pertinent part as follows:
(b) An appeal lies from any order or judgment in a criminal
proceeding where the law provides for such appeal, and from any
judgment of conviction: (2) Upon a plea of guilty or nolo contendere
if: (i) Defendant entered into a plea agreement under Rule 11(e) but
explicitly reserved with the consent of the state and of the court the
right to appeal a certified question of law that is dispositive of the
case. . . .
In State v. Preston, 759 S.W2.d 647 (Tenn. 1988), this Court explained the
requirements of Rule 37(b) as follows:
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
3
Ora l argu me nts w ere h eard in this c ase on N ovem ber 2 1, 19 97 in K ings port a s par t of this
Court’s S .C.A.L.E .S. (Supreme Court Advancing Lega l Education for Students ) project.
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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. . . . Also, the order must state that the certified
question was expressly reserved as part of the plea agreement, that
the State and the 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.
Id., 759 S.W.2d at 650 (emphasis added); see also State v. Pendergrass, 937
S.W.2d 834 (Tenn. 1996).
Contrary to the explicit and unambiguous requirements of Preston, the final
judgment in this case, entered on July 11, 1995, from which the time for filing an
appeal pursuant to Rule 3, Tenn. R. App. P., began to run, makes no reference at
all to a reservation of a dispositive question of law for appellate review. Moreover,
this judgment does not refer to, nor incorporate, any other independent document
which would satisfy the requirements of Preston.
Relying upon the trial court’s order of August 10, 1994, the defendant
argues that the question has been properly reserved for review. We point out
that, in the first appeal of this case, the Court of Criminal Appeals held that order
insufficient to qualify as a final judgment. Moreover, since that time, we have
specifically held that an order entered by a trial court after the filing of the notice of
appeal in the Court of Criminal Appeals is not effective to remedy noncompliance
with Rule 37, Tenn. R. App. P., because the trial court no longer has jurisdiction.
Pendergrass, 937 S.W.2d at 837-38. The August 10, 1994, order in this case falls
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squarely within that rule. Accordingly, the defendant may not rely upon that order
to establish compliance with Rule 37 and Preston.
CONCLUSION
After carefully reviewing the record, we have determined that the defendant
failed to properly reserve the right to appeal a certified question of law in
accordance with the requirements of Rule 37, Tenn. R. Crim. P. Accordingly, the
decision of the Court of Criminal Appeals upholding the trial court’s judgment
finding the defendant guilty of contributing to the delinquency of a minor and
imposing a sentence thereon is affirmed.
_____________________________________
FRANK F. DROWOTA, III
Justice
Concur:
Anderson, C.J.
Reid, Holder, JJ.
Birch, J - Not Participating.
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