State v. Oliver

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED

February 23, 2000

JANUARY 2000 SESSION

Cecil Crowson, Jr.

Appellate Court Clerk

STATE OF TENNESSEE, )

)

Appellee, ) No. E1999-00548-CCA-R3-CD

)

) Carter County

v. )

) Honorable Lynn W. Brown, Judge

)

ROBERT GUY OLIVER, ) (Driving under the influence of an intoxicant-

) fourth offense)

)

Appellant. )

For the Appellant: For the Appellee:

Steven McEwen Paul G. Summers

410 West Main Street Attorney General of Tennessee

Mountain City, TN 37683 and

(ON APPEAL) Patricia C. Kussmann

Assistant Attorney General of Tennessee

425 Fifth Avenue North

David F. Bautista Nashville, TN 37243

District Public Defender

Post Office Box 996 Joe C. Crumley, Jr.

Johnson City, TN 37605-0996 District Attorney General

and Post Office Box 38

Robert Y. Oaks Jonesborough, TN 37659

Assistant Public Defender and

Old Courthouse, Main Street Mark K. Hill

Elizabethton, TN 37643 Assistant District Attorney General

(AT TRIAL) 806 Third Street

Elizabethton, TN 37643

OPINION FILED:____________________

APPEAL DISMISSED

Joseph M. Tipton

Judge

OPINION

The defendant, Robert Guy Oliver, appeals as of right from his conviction

pursuant to a guilty plea in the Carter County Criminal Court for driving under the

influence of an intoxicant (DUI), fourth offense, a Class E felony. The defendant was

sentenced as a Range I, standard offender to one year of confinement in the custody of

the Department of Correction, with all but one hundred eighty days suspended to be

served at one hundred percent. He was fined three thousand dollars. The defendant

reserved the right to appeal the following issues pursuant to Rule 37(b)(2), Tenn. R.

Crim. P.:

1. whether the trial court erred by imposing a Class E felony

sentence rather than a Class A misdemeanor sentence when

the defendant’s previous convictions occurred before the

amendment of the DUI statute on July 1, 1998; and

2. whether the amendment to the DUI statute violates the

constitutional prohibition against ex post facto legislation.

We must dismiss the appeal because the defendant did not reserve a certified question

of law that is dispositive of the case.

The defendant pled guilty to DUI, fourth offense, on August 16, 1999, and

the trial court imposed a Class E felony sentence. See Tenn. Code Ann. § 55-10-

503(a)(1) (amended 1998). Essentially, the defendant asserts that the amendment to

Tenn. Code Ann. § 55-10-503(a)(1) that makes a fourth DUI offense a Class E felony

does so only if the third DUI conviction occurred after the effective date of the

amendment. Also, he contends that if we do not accept his interpretation of the statute,

then the statute should be rendered unconstitutional because of vagueness and the

prohibition against ex post facto legislation.

The defendant sought to reserve his certified questions of law pursuant to

Rule 37(b)(2), Tenn. R. Crim. P., which states as follows:

An appeal lies from any order or judgment in a criminal

proceeding where the law provides for such appeal, and from

any judgment of conviction:

....

(2) upon a plea of guilty or nolo contendere if:

(i) defendant entered into a plea agreement under Rule 11(e)

but explicitly reserved with the consent of the state and of the

court the right to appeal a certified question of law that is

dispositive of the case[.]

“An issue is dispositive when this court must either affirm the judgment or reverse and

dismiss. An issue is never dispositive when we might reverse and remand

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. . . .” State v. Wilkes, 684 S.W .2d 663, 667 (Tenn. Crim. App. 1984). Furthermore, we

are not bound by the trial court’s determination that an issue is dispositive. State v.

Preston, 759 S.W.2d 647, 651 (Tenn. 1988). Rather, we are required to make an

independent determination of the dispositive nature of the question reserved, and

appellate review must be denied if the record does not clearly demonstrate how the

question is dispositive. Id.

We hold that the defendant’s issues are not dispositive of the case.

If the defendant prevailed in this court, the case necessarily would be remanded to the

trial court for further action on the misdemeanor DUI charge, not reversed and

dismissed. Although an argument could be made that the defendant’s issues are

dispositive of the “felony case,” we view Wilkes to require either an affirmance or a

reversal and dismissal of the entire case.

In consideration of the foregoing and the record as a whole, we dismiss

the appeal.

________________________________

Joseph M. Tipton, Judge

CONCUR:

_________________________________

James Curwood W itt, Jr., Judge

_________________________________

Norma McGee Ogle, Judge

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