TN: Def failed to specify the dispositive issue for appeal

Defendant failed to clearly specify the dispositive issue for a conditional plea of a search issue. State v. Herbison, 2023 Tenn. Crim. App. LEXIS 343 (Crim. App. Sep. 11, 2023)*:

Strict compliance, rather than substantial compliance, with the requirements of Rule 37(b) is necessary to perfect the reservation of a certified question of law and to confer jurisdiction on an appellate court following entry of a guilty plea. Id. (stating that the Preston requirements, which were incorporated into Rule 37, have been “strictly construed”); State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003) (rejecting “substantial compliance” with the Preston requirements). The Tennessee Supreme Court recognized that “a substantial compliance standard would be very difficult to apply in a consistent and uniform manner, and therefore would conflict with the very purpose of Preston.” Armstrong, 126 S.W.3d at 912. “The defendant bears the burden of ensuring that the final order complies with the requirements of Rule 37 and that the appellate record is sufficient for review.” State v. Springer, 406 S.W.3d 526, 531 (Tenn. 2013); see State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996). The failure to properly reserve a certified question of law pursuant will result in dismissal of the appeal for lack of jurisdiction. Pendergrass, 937 S.W.2d at 838.

This court has frequently warned attorneys and trial courts of the inherent dangers of a Rule 37 appeal. In the past, we have described the inappropriate utilization of Rule 37 as “the quagmire of criminal jurisprudence in Tennessee.” State v. Thompson, 131 S.W.3d 923, 923-24 (Tenn. Crim. App. 2003). We have also referred to the conditions for certified questions as “‘a trap’ for the unwary.” State v. Bolka, No. W2018-00798-CCA-R3-CD, 2019 WL 1958110, at *3 (Tenn. Crim. App. Apr. 30, 2019) (citation omitted). Regrettably, the Defendant in this case joins the long list of defendants who have failed to follow the exacting requirements for an appeal of a certified question.