State v. Tallent

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9703-CR-00086
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 July 7, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9703-CR-00086 ) Appellee, ) ) ) MONROE CO UNTY VS. ) ) HON. CARROLL ROSS RALPH TALLENT, ) JUDGE ) Appe llant. ) (DUI)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF MONROE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES L. BEACH JOHN KNOX WALKUP 365 Market Street Attorney General and Reporter Clinton, TN 37716 TIMOTHY F. BEHAN Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243

JERRY N. ESTES District Attorney General

RICHARD NEWMAN Assistant District Attorney General P.O. Box 647 Athens, TN 37303

OPINION FILED ________________________

APPEAL DISMISSED

JERRY L. SMITH, JUDGE OPINION

A Monroe County grand jury indicted Appellant, Ralph Tallent, with charges of

Driving Under the Influence. Appellant filed a motion to suppress admission of the

breath test. After a hearing, Appellant’s motion was denied. Appellant then filed a

motion in limine to require the State to lay an appropriate foundation through the testing

officer before admitting the results of the breath tests. Appellant then pled guilty

pursuant to Rule 37 (b)(2)(i) of the Tennessee Rules of Criminal Procedure.

After a review of the record, we find that this appeal must be dismissed.

In State v. Preston, the Tennessee Supreme Court set out the perquisites for

consideration on the merits of a certified question of law pursuant to Rule 37(b)(2)(i).

1. The final order or judgment must contain statement of the dispositive question

of law reserved by defendant for appellate review;

2. The order must state that the certified question was expressly reserved as

part of a plea agreement;

3. The order must state that both the state and the trial judge have consented

to the reservation and are of the opinion that the question is dispositive of the case; and

4. The question of law must be stated so as to clearly identify the scope and the

limits of the legal issues reserved.

-2- State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988) (Accord State v. Harris, 919

S.W.2d 619 (Tenn. Crim. App. 1995); State v. Pendergrass, 937 S.W.2d 834 (Tenn.

1996)). In attempting to reserve a question of law, Defendant failed to properly follow

the procedure as set out in Preston. The judgment of the trial court reflects that

Defendant plead guilty subject to a Rule 37(b) appeal, but fails to set out the question

as required under part (i) of the Preston procedure. Further, the order does not contain

any indication by either the trial court or the State that the question raised by Defendant

is dispositive of this matter.1

Accordingly, this appeal is dismissed pursuant to Rule 20 of the Court of Criminal

Appeals Rules.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ THOMAS T. WOODALL, JUDGE

___________________________________ WILLIAM B. ACREE, JUDGE

1 It appears from the record that Appellant conceded in the trial court that the State had evidence of his guilt other than the results of the breath alcohol test. It is highly questionable therefore whether the issue presented herein can fairly be characterized as dispositive of this case.

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