State v. Sluder

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 12, 1997
• Docket: 03C01-9509-CC-00272
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST 1996 SESSION February 12, 1997

Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) ) APPELLEE, ) ) No. 03-C-01-9509-CC-00272 ) ) Morgan County v. ) ) E. Eugene Eblen, Judge ) ) (Possession of Marijuana while an Inmate ) in a Correction Institution) BENNY SLUDER, ) ) APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

Walter B. Johnson, II Charles W. Burson Assistant Public Defender Attorney General & Reporter P.O. Box 334 500 Charlotte Avenue Harriman, TN 37748 Nashville, TN 37243-0497

OF COUNSEL: Eugene J. Honea Assistant Attorney General Joe H. Walker 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493 P.O. Box 334 Harriman, TN 37748 Charles E. Hawk District Attorney General P.O. Box 703 Kingston, TN 37763

Frank A. Harvey Assistant District Attorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED:_________________________________

APPEAL DISMISSED

Joe B. Jones, Presiding Judge OPINION

The issue this Court must resolve is whether the appellant, Benny Sluder, is entitled

to maintain this appeal after he failed to comply with the requirements of Rule 37(b)(2),

Tennessee Rules of Criminal Procedure and State v. Preston, 759 S.W.2d 647 (Tenn.

1988) until approximately eight (8) months after the entry of the judgment. After a thorough

review of the record, the briefs of the parties, and the authorities which govern this issue,

it is the opinion of this Court the appellant's appeal must be dismissed.

On the 18th day of May, 1992, the Morgan County Grand Jury returned an

indictment charging the appellant with the possession of marijuana while an inmate in a

correctional institution. Tenn. Code Ann. § 39-16-201. The offense allegedly occurred on

January 18, 1992.

The appellant entered a plea of guilty on October 12, 1994. The trial court

sentenced the appellant pursuant to a plea bargain agreement. It was agreed the

appellant was a Range III persistent offender, his punishment should be confinement for

ten (10) years in the Department of Correction, and the sentence was to be served

consecutively to the sentences he was serving when he committed the offense. The trial

court's judgment was entered February 15, 1995.

The record establishes the appellant made no effort to preserve any issues for

appellate review when he entered the plea of guilty. The first indication the appellant was

going to file a supplement appears in his brief, which was filed with the clerk on November

20, 1995. The introduction portion of the brief states:

This record presents an appeal by agreement of a certified question of law pursuant to TRAP [sic] 37(b)(2)(I) by Benny Sluder from the Judgment of the Court dated February 15, 1995. . ., to be amended and supplemented in the record pursuant to TRAP 24.

The State of Tennessee filed its brief on January 18, 1996. The state contends in

its brief the appellant's appeal should be dismissed because he failed to preserve the

issues he presents for review pursuant to the requirements of Tenn. R. Crim. P. 37(b)(2)(i)

and State v. Preston, supra. The supplement to the record was not filed with the clerk of

2 this Court until February 1, 1996. This portion of the record contains an order entered on

November 20, 1995, which seeks to amend the trial court's judgment of February 15, 1995.

This "Amended Order" states in part:

The parties agree and the Court concurs that the issues of the Motion to Dismiss filed by the Defendant, specifically the selective prosecution of the Defendant and the violation of the Defendant's right to a speedy trial, is to be preserved for appeal purposes. To this end the parties agree that these issues are case dispositive pursuant to Tenn. R. Crim. P. 37(b)(2)(i).

This case is governed by the recent Supreme Court opinion in State v. Pendergrass,

_____ S.W.2d _____ (Tenn. 1996). In Pendergrass, the judgment was final when the trial

court attempted to amend it to grant the appellant the right to appeal a certified question

of law dispositive of the prosecution. Our Supreme Court held a trial court may not amend

a final judgment to accomplish this purpose.

Since the judgment entered after the sentencing hearing did not provide the right

of the appellant to appeal a certified question of law dispositive of the prosecution, the

appeal must be dismissed.

_____________________________________________ JOE B. JONES, PRESIDING JUDGE

CONCUR:

________________________________________ PAUL G. SUMMERS, JUDGE

________________________________________ DAVID G. HAYES, JUDGE