CAMILLE R. McMULLEN, Judge.
The Defendant-Appellant, Darryl Wilkins Burton, entered a guilty plea to driving under the influence (DUI) in exchange for a sentence of eleven months and twenty-nine days to be served on probation after the service of forty-eight hours in the Williamson County jail. The Defendant reserved a certified question of law challenging the denial of his motion to suppress, which was based upon an unconstitutional seizure. Because the Defendant failed to properly reserve the certified question, we dismiss the appeal.
On July 14, 2014, the Defendant was indicted by a Williamson County Grand Jury for one count of DUI and one count of DUI .08% or greater. On October 2, 2014, the Defendant filed a motion to suppress claiming that the police lacked reasonable suspicion or probable cause to stop the Defendant's vehicle, which violated the Fourth Amendment to the United States Constitution and Article I, Section 7, of the Tennessee Constitution. The State opposed the Defendant's motion and a hearing was held on March 6, 2015.
Motion to Suppress Hearing.
At the hearing, Deputy Paul Lusk of the Williamson County Sheriff's Office testified that he was on duty on September 23, 2013, at 1:45 a.m. when he first observed the Defendant. Deputy Lusk was directly behind the Defendant's vehicle on Hillsboro Road, which has a "sharp left curve, and then . . . widens out into a four lane straight away before Berry's Chapel Road." Deputy Lusk testified that he observed the Defendant's vehicle cross over the center line three times and cross over the "fog line onto the shoulder quite drastically . . . [a]nd then as we approached the intersection at Berry's Chapel [Road] the vehicle made a sudden stop, without utilizing the turn lane, [and] turned from the actual driving lane . . . onto Berry's Chapel Road." He clarified that the Defendant entered the right turn lane for "maybe [ten] feet or so" at the very end of the turn lane. After observing the Defendant turn right on Berry's Chapel Road, Deputy Lusk initiated his blue lights and performed a traffic stop. He testified that it was "approximately [fifteen] seconds between the first traffic violation and when he initiated the traffic stop." Deputy Lusk testified that the Defendant was not speeding.
Deputy Lusk recorded the incident, and the video was played during the suppression hearing. Deputy Lusk clarified that before he activated his camera he observed the Defendant cross the center line once. The beginning of the video showed Deputy Lusk driving behind the Defendant's vehicle on a two lane road. Deputy Lusk testified that at approximately 1:46 a.m. the video showed the Defendant's vehicle cross the center line and, a few seconds later, the video showed the Defendant driving on the fog line. Eighteen seconds later, the Defendant's vehicle touched the fog line and then the vehicle drifts "about halfway on the shoulder." Finally, at 1:47 a.m., the video showed the Defendant in the bike lane, and once the bike lane became a turn lane, "the [Defendant's] vehicle [did not] go to the turn lane until after the solid line starts." Deputy Lusk agreed that the failure to enter the turn lane when it is not "the dotted line and the fog line" constitutes an improper turn. Deputy Lusk identified the Defendant and affirmed that the actions depicted in the video and the traffic stop occurred in Williamson County.
On cross-examination, Deputy Lusk testified that the reason he activated his camera was because he saw "the vehicle cross over the center line, once maybe twice." He could not recall how many times the vehicle crossed the center line, but it was "at least once." Deputy Lusk read portions of the affidavit of complaint and explained that he had probable cause to stop the Defendant because he failed to maintain his lane of travel by "crossing the middle line and the fog line." Deputy Lusk believed that he also took out a warrant for failure to maintain lane of travel but he was not "positive if [he] did or not." He explained that he did not include any information about the Defendant's "improper turn" because the "improper turn" was included in the charge of failing to maintain a lane of travel. Deputy Lusk did not know if the charge for failure to maintain a lane of travel was presented to the Grand Jury, and he did not remember testifying in front of the Grand Jury regarding the Defendant.
Deputy Lusk reiterated that the Defendant "barely utilized the turn lane" when he made a right turn onto Berry's Chapel Road from Hillsboro Road. He could not recall how far he followed the Defendant before he activated his camera, but once the camera was activated he estimates that he followed the Defendant about "a quarter mile." Deputy Lusk explained that the video showed that the Defendant "jerked into the bike lane, [and then] he jerked back on to the roadway." Finally, the trial court asked Deputy Lusk whether the Defendant was weaving within his own lane of travel, and Deputy Lusk said "Yes, ma'am . . . [The Defendant went] from the yellow line to the white line at least more than once on the video."
After considering the arguments of counsel, the trial court denied the motion to suppress. After watching the video and listening to Deputy Lusk's testimony, the trial court found that the video showed the Defendant crossed the fog line at least three times and crossed the center line at least once. The trial court also found that the Defendant entered the turn lane when the line was solid, which is "a violation of the driving law." The trial court also agreed with Deputy Lusk that the Defendant was "weaving within his own lane" and that the Defendant "crossed the center line at least once if not twice" before Deputy Lusk activated his camera. Therefore, the trial court concluded that "based on the Court's view of the video in conjunction with Deputy Lusk's testimony" there was probable cause and "at least reasonable suspicion" to stop the vehicle.
On March 3, 2016, the Defendant entered a conditional guilty plea to first offense DUI. As part of his guilty plea, he purported to reserve a certified question of law under Rule 37 of the Tennessee Rules of Criminal Procedure. The judgment form did not contain the certified question of law. However, a handwritten statement with trial counsel's signature and the State's signature was attached to the judgment form and contained the following question:
The Defendant filed a timely notice of appeal on April 1, 2016.
The Defendant argues that the trial court erred in finding that Deputy Lusk had probable cause or reasonable suspicion to initiate a traffic stop for "crossing [the] solid white line to enter [the] turn lane, crossing the center line and fog line, and weaving within his own lane." The Defendant argues that "the evidence was insufficient to support . . . reasonable suspicion or probable cause that [the] Defendant had committed, or was about to commit, any criminal offense." The State argues that the appeal should be dismissed because the Defendant did not properly reserve a certified question of law. After reviewing the record, we agree with the State.
A defendant must properly reserve a certified question before this court has jurisdiction to consider the merits of the question. Tennessee Rule of Criminal Procedure 37(b)(2)(A) allows for an appeal from any order or judgment on a conditional plea of guilty or nolo contendere if the defendant reserves, with the consent of the State and the court, the right to appeal a certified question of law that is dispositive of the case, so long as the following four requirements are met:
Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).
The Tennessee Supreme Court clearly outlined the requirements for reserving a certified question of law in
759 S.W.2d 647, 650 (Tenn. 1988). As the Tennessee Supreme Court emphasized,
The record shows that the judgment form was entered on March 3, 2016. The Special Conditions box of the judgment form contains the following information:
The next page of the record contains a handwritten statement of the proposed certified question of law. We note that the certified question was not on the judgment form and was only found on this handwritten page. The statement contains the signatures of the State and trial counsel and states that "[t]his issue is dispositive of the case." On April 7, 2016, after the Defendant had filed his notice of appeal, the trial court entered an order stating that "[t]he judgment reserved a certified question of law." The record did not contain an agreed order indicating that the trial court, the State, and the Defendant consented to the reservation of the certified question of law and believed that the certified question was dispositive of the case.
The Defendant argues that "[t]he express language of the Rule only states that the judgment or order must `reflect' that the certified question was expressly reserved with the consent of the State" and that all parties agreed that the certified question is dispositive of the case. He further argues that there is no requirement that all of "the signatures showing agreement are on the same page." Although Rule 37 does not explicitly require the Defendant, State, and trial court to sign the same page, it does require that an agreement has been reached between the parties and the trial court. The Defendant asks this court to assume that because the certified question was attached to the judgment form and the trial court signed the judgment form that this means the trial court consented to the reservation of the certified question and was of the opinion that the question was dispositive of the case. Based on our review of the record, the Defendant did not satisfy the
First, the judgment form did not include "a statement of the dispositive certified question of law reserved by the defendant for appellate review."
Here, the certified question was handwritten and attached to the judgment form. This could have been sufficient to certify the question of law if the Defendant had included a contemporaneously filed order stating that "certified question was expressly reserved as part of a plea agreement, that the State and the trial judge consented to the reservation[,] and that the State and the trial judge are of the opinion that the question is dispositive of the case."
Both the judgment form and the handwritten statement attached to the judgment form failed to reflect that "the defendant, the state, and the trial court are of the opinion that the certified question is dispositive of the case" and failed to reflect that "the trial court is of the opinion that the certified question is dispositive of the case." Accordingly, we are without jurisdiction to consider this appeal.
Based on the aforementioned authorities and reasoning, we are without jurisdiction to consider this appeal. Accordingly, the appeal is dismissed.