IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
February 23, 2000
JANUARY 2000 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. E1999-00548-CCA-R3-CD
)
) Carter County
v. )
) Honorable Lynn W. Brown, Judge
)
ROBERT GUY OLIVER, ) (Driving under the influence of an intoxicant-
) fourth offense)
)
Appellant. )
For the Appellant: For the Appellee:
Steven McEwen Paul G. Summers
410 West Main Street Attorney General of Tennessee
Mountain City, TN 37683 and
(ON APPEAL) Patricia C. Kussmann
Assistant Attorney General of Tennessee
425 Fifth Avenue North
David F. Bautista Nashville, TN 37243
District Public Defender
Post Office Box 996 Joe C. Crumley, Jr.
Johnson City, TN 37605-0996 District Attorney General
and Post Office Box 38
Robert Y. Oaks Jonesborough, TN 37659
Assistant Public Defender and
Old Courthouse, Main Street Mark K. Hill
Elizabethton, TN 37643 Assistant District Attorney General
(AT TRIAL) 806 Third Street
Elizabethton, TN 37643
OPINION FILED:____________________
APPEAL DISMISSED
Joseph M. Tipton
Judge
OPINION
The defendant, Robert Guy Oliver, appeals as of right from his conviction
pursuant to a guilty plea in the Carter County Criminal Court for driving under the
influence of an intoxicant (DUI), fourth offense, a Class E felony. The defendant was
sentenced as a Range I, standard offender to one year of confinement in the custody of
the Department of Correction, with all but one hundred eighty days suspended to be
served at one hundred percent. He was fined three thousand dollars. The defendant
reserved the right to appeal the following issues pursuant to Rule 37(b)(2), Tenn. R.
Crim. P.:
1. whether the trial court erred by imposing a Class E felony
sentence rather than a Class A misdemeanor sentence when
the defendant’s previous convictions occurred before the
amendment of the DUI statute on July 1, 1998; and
2. whether the amendment to the DUI statute violates the
constitutional prohibition against ex post facto legislation.
We must dismiss the appeal because the defendant did not reserve a certified question
of law that is dispositive of the case.
The defendant pled guilty to DUI, fourth offense, on August 16, 1999, and
the trial court imposed a Class E felony sentence. See Tenn. Code Ann. § 55-10-
503(a)(1) (amended 1998). Essentially, the defendant asserts that the amendment to
Tenn. Code Ann. § 55-10-503(a)(1) that makes a fourth DUI offense a Class E felony
does so only if the third DUI conviction occurred after the effective date of the
amendment. Also, he contends that if we do not accept his interpretation of the statute,
then the statute should be rendered unconstitutional because of vagueness and the
prohibition against ex post facto legislation.
The defendant sought to reserve his certified questions of law pursuant to
Rule 37(b)(2), Tenn. R. Crim. P., which states as follows:
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[.]
“An issue is dispositive when this court must either affirm the judgment or reverse and
dismiss. An issue is never dispositive when we might reverse and remand
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. . . .” State v. Wilkes, 684 S.W .2d 663, 667 (Tenn. Crim. App. 1984). Furthermore, we
are not bound by the trial court’s determination that an issue is dispositive. State v.
Preston, 759 S.W.2d 647, 651 (Tenn. 1988). Rather, we are required to make an
independent determination of the dispositive nature of the question reserved, and
appellate review must be denied if the record does not clearly demonstrate how the
question is dispositive. Id.
We hold that the defendant’s issues are not dispositive of the case.
If the defendant prevailed in this court, the case necessarily would be remanded to the
trial court for further action on the misdemeanor DUI charge, not reversed and
dismissed. Although an argument could be made that the defendant’s issues are
dispositive of the “felony case,” we view Wilkes to require either an affirmance or a
reversal and dismissal of the entire case.
In consideration of the foregoing and the record as a whole, we dismiss
the appeal.
________________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________________
James Curwood W itt, Jr., Judge
_________________________________
Norma McGee Ogle, Judge
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