State v. Preston

• Decision Date: 06 September 1988
• Citation: State v. Preston, 759 S.W.2d 647 (Tenn. 1988)
• Court: Tennessee Supreme Court
• Parties: STATE of Tennessee, Appellee, v. David PRESTON, Appellant.

Page 647

759 S.W.2d 647

STATE of Tennessee, Appellee, v.David PRESTON, Appellant.

Supreme Court of Tennessee at Nashville.

Sept. 6, 1988.

Petition to Rehear Denied

Oct. 24, 1988.

W.J. Michael Cody, Atty. Gen. and Reporter, Charles E. Bush, Asst. Atty. Gen., Nashville, for appellee.

Lew Conner, R.E. Lee Davies, Waller, Lansden, Dortch & Davis, Nashville, for appellant.

OPINION

FONES, Justice.

The issue in this case is whether defendant, in pleading nolo contendere to a drug charge, explicitly reserved the right to appeal a certified question of law that was dispositive of the case, in accord with the requirements of Tenn.R.Crim.P. 37(b)(2)(i).¹

The Court of Criminal Appeals held that defendant had failed to include any reference to the reservation of a certified question of law in any of the orders entered in the trial court in the course of disposing of defendant's plea of nolo contendere.Thus, the Court of Criminal Appeals did not reach the merits of the issue defendant sought to reserve, to-wit: whether his confession was admissible in evidence.We reverse and remand to the Court of Criminal Appeals.

Defendant's motion to suppress his statement was heard on 24 May 1985, and denied at a later date.On 21 November 1985, defendant appeared in open court with counsel for a hearing on his plea of nolo contendere.On that date defendant signed and filed a three page petition entitled "Petition to Enter Plea of Nolo Contendere".Therein defendant asserted in detail that he had been fully advised of the rights that have been mandated by the courts in State v. Mackey, 553 S.W.2d 337(Tenn.1977), and its progeny, and that he understood his plea of nolo contendere, the punishment he could receive for the offense charged, and the punishment that he could receive for the offense pled to.Other matters not relevant to the issue before us were included.Suffice it to say, we conclude that the scope of the order indicates that it was basically a form order mandated by a local rule to be used when pleas of not guilty and nolo contendere were being entered to assist the trial court in complying with constitutional requirements and Mackey in the taking of such pleas.

The 21 November 1985, petition also contained the following paragraph:

Pursuant to Rule 37(b)(2), I explicitly reserve with the consent of the State the right to appeal the admissibility of my confession, which is dispositive of this case, to the Court of Criminal Appeals; and if the Court of Criminal Appeals determines that said confession is inadmissible, the charges will be dismissed.This nolo contendere plea is absolutely conditional upon my right to appeal the above question.

Proceedings on defendant's plea of nolo contendere were had in open court on that date and an order entered bearing that same date, which is obviously a form order, signed by the trial judge, but not by either counsel for defendant or anyone representing the district attorney's office.The opening paragraph recites that the cause came on to be heard on defendant's petition for waiver of trial by jury, request that the court accept his plea, etc., and that "said petition being attached hereto and incorporated by reference herein".The order then sets out ten findings of fact covering defendant's understanding of his rights and concludes with the court finding that both the plea tendered and the punishment recommended by the State were acceptable to the court, without specifying therein the punishment.The reduced offense recommended by the State was that of attempt to commit a felony by attempting sale of a controlled substance, with punishment of not more than three years and a fine of $1,000.Clearly, the recitation in the order that the petition was attached and incorporated into the order was deemed to render unnecessary the repetition of the punishment or in fact of any other material that might otherwise have appeared in the order.

On 6 December 1985, defendant filed a motion for suspended sentence that contained the recitation that "defendant's entry of a plea of nolo contendere was based upon the ultimate admissibility of his confession, an extremely close question of law."

A hearing was held on 11 December 1985 on his motion for a suspended sentence or probation and the final order from which defendant's appeal was taken was entered on that date, denying the request for a suspended sentence, giving reasons therefor, and imposing the sentence recommended by the State as recited in the 21 November petition.However, the trial judge provided that after serving six months of the three year sentence defendant would be placed on probation for a period of five years.

There is no question but that the record in this case supports the finding that the defendant entered a plea of not guilty expressly conditioned upon a reservation of his right to appeal the question of the admissibility of the statement he gave officers, and that the district attorney general's office and the trial judge consented to the plea, the reservation of that question of law and that it was dispositive of the case.

The Court of Criminal Appeals reached the conclusion that defendant had failed to explicitly reserve a precise question of law to be decided on appeal either in the order granting the petition or in the final judgment in the trial court, from which this appeal was prosecuted.Relying upon several reported and unreported cases of the Court of Criminal Appeals and State v. Jennette, 706 S.W.2d 614(Tenn.1986), the intermediate court found that defendant had not complied with the explicit certification of a question of law requirement.

In Patterson v. State, 684 S.W.2d 110(Tenn.Crim.App.1984), the Court of Criminal Appeals found that the record did not contain any showing whatever that there was a compliance with the formal steps required by Tenn.R.Crim.P. 37(b)(2)(i).There was no indication that the trial judge had consented to the reserved question of law, or identified it, or passed on the dispositive test of the proposed issue.

In State v. Wilkes, 684 S.W.2d 663(Tenn.Crim.App.1984), defendant's appeal was held deficient principally because the trial judge failed to agree and certify that the question of law defendant proposed to reserve was dispositive of the case.

No application for permission to appeal was filed in Patterson or in Wilkes.Neither case directly involved the deficiency found by the Court of Criminal Appeals in the instant case.

The Court of Criminal Appeals relied in part upon State v. Jennette, supra, an opinion of this Court that was released after the final judgment of the trial court was filed in the instant case.In Jennette, defendant had pled guilty to a charge of manufacturing marijuana for resale and attempted to reserve questions of law for review on appeal pursuant to Tenn.R.Crim.P. 37(b)(2)(iv).We dealt with defendant's compliance with the prerequisites for such an appeal as follows:

Nowhere in the order of the trial court is a dispositive certified question stated, nor does the same appear in a written motion to suppress filed by appellees.Instead, at the suppression hearing counsel for appellees stated that there were "several issues" involved in the case including "a whole range of Fourth Amendment questions and Article I, Sec. 7 questions of the Tennessee Constitution...."

In the Court of Criminal Appeals and in this Courtappellees have sought to raise a large number of questions involving the broad field of search and seizure without any specification or certification from the trial court and...