Was Decided In State v. Vasser, 870 S.W.2D 543 (Tenn. Crim. App. 1993), He Asserts That

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9708-CC-00364
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

STATE OF TENNESSEE, ) ) C.C.A. NO. 01C01-9708-CC-00364 Appellee, ) ) LEWIS COUNTY VS. ) (No. 5505 Below) ) The Hon. Donald P. Harris ROBERT GERRY JERNIGAN, ) ) (Certified Question of Law) Appellant. ) AFFIRMED PURSUANT TO RULE 20

ORDER

This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. Based on our review, we affirm the judgment of the trial court

pursuant to Rule 20.

The appellant pled guilty to driving under the influence, first offense, and

attempts to appeal a certified question of law. Specifically, the appellant contends that he

is eligible and entitled to judicial diversion. While the appellant concedes that this issue

was decided in State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993), he asserts that

the reasoning in Vasser was erroneous. Although we find this issue is without merit, the

Court must first determine whether a certified question of law is properly before us.

In State v. Preston, 759 S.W.2d 647 (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. The defendant must 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 appellant 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. See also State v. Pendergrass, 937 S.W.2d 834, 837-38

(Tenn. 1996). We are, therefore, precluded from considering whether the appellant was entitled to judicial diversion. Even if we were to review this issue on the merits, we would

not grant relief based on State v. Vasser, 870 S.W.2d 543, 547.

IT IS, THEREFORE, ORDERED that the state’s motion to affirm the

judgment of the trial court pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules

is granted and the judgment of the trial court is affirmed. Costs are taxed to the appellant.

I T I S F U R T H E R O R D E R E D t h a t t h e a p p e ll a n t ' s b o n d i s h e r e b y r e v o k e d .

T h e a p p e l l a n t s h a l l b e t a k e n in t o c u s t o d y im m e d i a t e l y b y t h e p r o p e r a u t h o r i t i e s .

ENTER, this the ____ day of October, 1997.

_____________________________ JOHN H. PEAY, JUDGE

CONCUR:

_____________________________ DAVID H. WELLES, JUDGE

_____________________________ THOMAS T. WOODALL, JUDGE

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