State v. Nickey & Janice Duncan

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 02C01-9712-CC-00476
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MAY 1998 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) C. C. A. NO. 02C01-9712-CC-00476 ) vs. ) GIBSON COUNTY

JANICE FAY DUNCAN and ) ) NO. 15412 FILED NICKY LYNN DUNCAN, ) ) May 7, 1998 Appellants. ) Cecil Crowson, Jr. Appellate C ourt Clerk

ORDER

The appellants in this case pled guilty to simple possession of marijuana

and were sentenced to eleven months and twenty-nine days and fined $350. It appears

the appellants were placed on probation after serving fifteen days in the county jail.

Prior to entering the guilty pleas, the appellants filed a motion to suppress all evidence

obtained from the search of their residence. After a hearing, the trial court denied the

motion. The appellants have attempted to reserve the right to appeal the suppression

issue. Based upon our review of the entire record before the Court, including the briefs

of the parties, we affirm the judgment of the trial court pursuant to Rule 20, Rules of the

Court of Criminal Appeals.

In State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988), our Supreme

Court stated that when a defendant pleads guilty and wishes to reserve a certified

question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i) or (iv), "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. It is the defendant's

responsibility to assure that the final order complies with these requirements and that

the record on appeal contains the proceedings necessary to a complete determination.

Id. In this case, the appellants failed to explicitly reserve the right to appeal a

certified question of law that was dispositive of the case as mandated by Tenn. R. Crim.

P. 37(b)(2)(iv) and Preston. “[T]he judgments do not contain an identification of the

scope and limits of the legal issue reserved as required. Nor do the judgments contain

any statement in satisfaction of the reservation requirements, nor do they contain any

statement that the question is dispositive, all explicitly required by Preston." State v.

Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996). As our Supreme Court has stated,

these “mandatory” requirements are “unambiguous.” Id. In addition, these

requirements apply “regardless of what has appeared in prior petitions, orders, colloquy

in open court or otherwise.” Preston, 759 S.W.2d at 650. Nevertheless, the appellants

have not included in the record the state’s response to their motion, a copy of the

transcript of the suppression hearing, or any relevant order of the trial court. Contrary

to the appellants’ position that they did not want to “clutter[] the record with unnecessary

material,” this Court cannot review the ruling of the trial court if the nature of the issue,

arguments thereon, and the trial court’s ruling and reasons are not included in the

record.

For these reasons, we are precluded from considering whether the trial

court properly denied the appellants’ motion to suppress. IT IS, THEREFORE,

ORDERED that the judgment of the trial court is affirmed pursuant to Rule 20,

Tennessee Court of Criminal Appeals Rules. Costs are taxed to the appellants.

Enter, this the ___ day of May, 1998.

______________________________

2 JOHN H. PEAY, JUDGE

______________________________ PAUL G. SUMMERS, JUDGE

______________________________ THOMAS T. WOODALL, JUDGE