The opinion
STATE OF TENNESSEE, )
)
Plaintiff/Appellee, ) Appeal No.
) 01-A-01-9510-CV-00445
v. )
) Dickson Circuit
FILED
JACOB KYLE TIPTON, ) No. CR-1584
)
Defendant/Appellant. )
Jan. 19, 1996
Cecil Crowson, Jr.
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CIRCUIT FOR DICKSON COUNTY
AT CHARLOTTE, TENNESSEE
THE HONORABLE ROBERT E. BURCH, JUDGE
CHARLES W. BURSON
Attorney General and Reporter
EUGENE J. HONEA
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
ATTORNEYS FOR PLAINTIFF/APPELLEE
BILL R. BARRON
Contract Appellant Defender
124 East Court Square
Trenton, Tennessee 38382
JOSEPH L. HORNICK
Assistant Public Defender
P. O. Box 160
Charlotte, Tennessee 37036
ATTORNEYS FOR DEFENDANT/APPELLANT
DISMISSED AND REMANDED
SAMUEL L. LEWIS, JUDGE
O P I N I O N
This case presents what is purportedly an appeal under
Tennessee Rule of Criminal Procedure 37(b). The issue of law
involves a juvenile's plea of guilty to delinquency in the Circuit
Court of Dickson County.
This case arose when Ms. Vivian McCord, Principal of
Charlotte Elementary School in Dickson County, Tennessee, filed a
petition in the Juvenile Court for Dickson County. She alleged
that appellant, eleven year old Jacob Kyle Tipton, was a delinquent
child because she found him with marijuana while at school.
Thereafter, appellant filed a motion to suppress in the
Dickson County Juvenile Court. Appellant alleged that school
officials and police officers had violated his constitutional
rights when they took a statement from him at the school and when
they conducted a search and found the evidence at issue in this
case. A hearing was held on appellant's motion by the juvenile
court. In July 1994, the juvenile court entered an order denying
the motion. On that same date, the juvenile court entered an order
finding Jacob Kyle Tipton to be an "unruly child."
In August 1994, appellant filed a "notice of appeal"
notifying the circuit court that he was appealing "from an Order
entered by the Dickson County Juvenile Court on July 19, 1994, in
which the Honorable Andrew Jackson overruled appellant's motion to
suppress evidence." Thereafter, the circuit court held a hearing
on appellant's motion to suppress.
At the hearing, Ms. McCord testified to the facts underlying
her petition. In May 1994, she learned that students, appellant in
2
particular, were bringing drugs to school. She believed that the
only way to catch the students in possession of the drugs was to
search the students as they got off the school bus.
Ms. McCord asked Officer John Patterson to be present when
she met the school bus, and he complied with her request. She
entered the bus and asked appellant to empty his pockets and shoes.
She stated: "I, basically, searched him. The officer stayed -- He
was on the bottom step of the bus, and he just stand [sic] there
and observed." The search on the bus did not turn up any drugs.
Ms. McCord took appellant to her office. She testified that
she did not consider appellant to be "under arrest," that he was
free to come and go, and that she told him of her suspicions. She
then testified as follows: "Well, first he denied it.... And, of
course, finally, we -- he admitted it in this little blue -- it's
a pencil thing that he carries in his notebook. So we looked at
that, and, at that point in time, I let the officer look at it; and
there was some remains of [marijuana] cigarettes." Ms. McCord
further testified that appellant admitted that he "used" marijuana
two or three times a week and on weekends. She also testified that
he used cocaine about once a week and that other students had told
her that appellant had sold them marijuana.
On cross-examination, she testified that she would not force
a student to answer questions if they did not wish to do so, but
"they can't just get up and walk out." She also stated: "Jacob
knows he could ask to leave at any time. But, no, they're not
going to be allowed to get up and just [go] out at any time."
Officer Patterson testified that appellant voluntarily
allowed Ms. McCord to look in his pencil container. Officer
Patterson also stated as follows: "Yes, sir, he did, after we had,
3
several times, told Mr. Tipton that he didn't have to talk to us
and that he was, indeed, free to leave if he did not want to talk
to us."
There was no evidence presented by appellant to contradict
any of the testimony of Ms. McCord or of Officer Patterson.
At the hearing, the circuit court judge stated as follows:
The Court holds for the purpose of searching for
drugs and obtaining confessions and so forth, the
principal is a State officer. A principal is an
officer of the State empowered by statute to search
for illegal substances; and therefore, is carrying
out a legitimate State instance [sic]. Therefore,
in certain conditions, custodial warnings must be
given because it is a State action, and the Fourth
Amendment applies to the State.
Subsequently, the circuit court entered an order which stated:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
that when a principal of a school is searching for
illegal materials, he/she is an officer of the
State, acting with State interest in mind, the 4th
amendment would apply and thus custodial warnings
could be necessary.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that a principal, along with police officers,
questioning a student in custodial [sic]; however,
in this case it was made clear to the minor
Defendant that he could leave and, therefore, this
was non-custodial and all statements were
voluntary.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that minors consenting to adults should be looked
at carefully and an acquisition [sic] to authority
would not necessarily be consent, but in this case
there was consent because it was made clear that he
could refused to be searched.
On 7 December 1994, the circuit court entered what it termed
an "Agreed Order of Disposition." The order provided that the
parties agreed with the court's declaration that appellant was a
"delinquent child." On 30 January 1995, the trial court entered an
"amended order" placing appellant on probation and, pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2)(i),(iv), allowing
4
appellant to preserve for appeal those issues presented in his
motion to suppress.
On 1 March 1995, appellant filed a notice of appeal in the
Court of Criminal Appeals. The State moved to transfer the appeal
to the Court of Appeals. The Court of Criminal Appeals granted the
motion and transferred the case pursuant to Tennessee Rule of
Appellate Procedure 17.
Subsequently, the State moved to dismiss the appeal on
jurisdictional grounds. Thereafter, this court entered an order
stating in pertinent part:
It appears that the issues raised in the appellee's
motion should be disposed of only after the
briefing schedule has been completed....
It is, therefore, ordered that the motion to
dismiss be overruled. The court reserves judgment
on the issues of law presented the motion pending
the final disposition of this appeal.
Both appellant and the State of Tennessee have presented
issues; however, we are of the opinion that the resolution of the
State's issue of "[whether] the circuit court's orders entered in
this case are void because the circuit court lacked subject-matter
jurisdiction to hear an appeal from an interlocutory order of the
juvenile court" is dispositive of this case.
Tennessee Code Annotated section 37-1-133(a) provides: "An
order of disposition or other adjudication in a proceeding under
this part is not a conviction of crime and does not impose any
civil disability...." Tenn. Code Ann. § 37-1-133(a)(1991); see
also State v. Womack, 591 S.W.2d 437, 442 (Tenn. App. 1979).
Tennessee Code Annotated section 37-1-159 provides that the circuit
court has jurisdiction to hear appeals of final orders rendered by
a juvenile court and that such appeals must be perfected within ten
5
days excluding nonjudicial days. This statute does not provide the
circuit court with jurisdiction to hear appeals of interlocutory
orders. Tenn. Code Ann. § 37-1-159(a)(Supp. 1995); see In the
Matter of McCloud, No. 01-A-01-9212-CV00504, 1993 WL 194041, at *7
(Tenn. App. 9 June 1993 at Nashville); State ex rel. Johnson v.
Wolf, No. 06-52-82, 1988 WL 15710, at *3-*4 (Tenn. App. at
Nashville 26 Feb. 1988).
The Rules of Juvenile Procedure and Tennessee Code Annotated
title 37, chapter 1 limit the Rules of Criminal Procedure's
application in juvenile proceedings to specific and limited
circumstances. Tennessee Rule of Juvenile Procedure 21 provides and
controls the procedure for pleas by juveniles in delinquent and
unruly cases.
The State insists that the orders entered by the circuit
court are void, that there is nothing for the appellant to appeal
from at this point, and that this court should dismiss the appeal.
In support of this, they cite to In the Matter of McCloud. In that
case, this court, in an opinion written by Judge Koch, stated, in
pertinent part:
A.
By its own plain terms, Tenn. Code Ann. § 37-1-
159(a) permits the circuit court to consider
appeals from "any final order or judgment" of the
juvenile court. In the absence of a contrary
statute, we will construe the finality requirement
in Tenn. Code Ann. § 37-1-159(a) to be the same as
the finality requirement for other appeals. Thus,
an order is not final if it adjudicates fewer than
all the claims between all the parties, see Tenn.
R. App. P. 3(a); Fox v. Fox, 657 S.W.2d 747, 749
(Tenn. 1983); Stidham v. Fickle Heirs, 643 S.W.2d
324, 325 (Tenn. 1982), or if it leaves anything
else for the court to do. Aetna Casualty & Sur.
Co. v. Miller, 491 S.W.2d 85, 86 (Tenn. 1973);
Mengle Box Co. v. Lauderdale County, 144 Tenn. 266,
276, 230 S.W. 963, 965-66 (1921).
The special juvenile judge's January 6, 1992
order was clearly not final. It did not completely
adjudicate all the claims between all the parties,
6
and it left the juvenile court with other things to
do. While it denied the Nash-Putnams' and guardian
ad litem's motions to terminate Ms. McCloud's
visitation with her daughter, it reserved making a
final decision concerning the child's placement
pending another hearing to be conducted on July 8,
1992. The circuit court and the Nash-Putnams them-
selves have consistently referred to the January 6,
1992 order as an interlocutory order, and the trial
court's belated decision to treat the order as
final does not alter the fact that it was not.
Accordingly, the trial court did not have juris-
diction under Tenn. Code Ann. Sec. 37-1-159(a) to
review the January 6, 1992 order.
B.
Circuit courts may review a juvenile court's
interlocutory decision using the common-law writ of
certiorari. Doster v. State, 195 Tenn. 535, 536-
37, 260 S.W.2d 279, 279 (1953); State v. Womack,
591 S.W.2d 437, 441 (Tenn. Ct., App. 1979).
However, the scope of this writ is much more
limited than the board de novo appellate review
available under Tenn. Code Ann. Sec. 37-1-159(a).
Review under the common-law writ is limited to
considering whether the inferior tribunal has
exceeded its jurisdiction or has acted illegally,
arbitrarily, or fraudulently. Tenn. Code Ann. Sec.
27-8-101 (Supp. 1992); McCallen v. City of Memphis,
786 S.W.2d 633, 638 (Tenn. 1990); Henry v. Board of
Claims, 638 S.W.2d 825, 827 (Tenn. Ct. App. 1982).
The common-law writ does not permit the reviewing
court to inquire into the correctness of the
inferior court's judgment as to the law or the
facts. Cooper v. Williamson County Bd. of Educ.,
746 S.W.2d 176, 179 (Tenn. 1987); Yokley v. State,
632 S.W.2d 123, 126 (Tenn. Ct. App. 1981).
Neither the parties nor the circuit court
treated this proceedings as one involving a common-
law writ of certiorari. They did not comply with
any of the statutory requirements for writs of
certiorari such as support by oath or affirmation,
issuance and return of the writ, or issuance of a
writ of supersedeas. Thus, the Nash-Putnams'
appeal does not meet the procedural requirements in
Tenn. Code Ann. Secs. 27-8-101, -123 (1980 & Supp.
1992).
Even if we were inclined to overlook these
procedural omissions, the facts in this record
would not support the issuance of a common-law writ
of certiorari. Neither the Nash-Putnams nor the
guardian ad litem have alleged that the juvenile
court lacked jurisdiction over the proceedings
involving Debra McCloud and have not pointed to any
facts showing that the juvenile court was acting
illegally.
Illegal actions subject to correction through
a common-law writ of certiorari must rise to the
level of a fundamental illegality, State ex rel.
McMorrough v. Hunt, 137 Tenn. 243, 249, 192 S.W.
7
931, 933 (1917), or a failure to proceed according
to the essential requirements of the law. Taylor
v. Continental Tenn. Lines, Inc., 204 Tenn. 556,
560, 322 S.W.2d 425, 426-27 (1959); Gatlinburg Beer
Regulation Comm. v. Ogle, 185 Tenn. 482, 486, 206
S.W.2d 891, 893 (1947).
The record permits no reasonable objection to
the juvenile court's jurisdiction. The juvenile
court had subject matter jurisdiction over the case
by virtue of Tenn. Code Ann. Sec. 37-1-1-3(a)(1)
and Tenn. Code Ann. Sec. 37-2-402(3) (1991), and it
also had personal jurisdiction over the parties.
Likewise, the record contains no basis to claim
that the juvenile court acted illegally,
arbitrarily, or fraudulently. The relief granted
by the special juvenile judge was within the
statutory prerogatives of juvenile courts, and her
decision was clearly intended to accomplish a goal
or objective consistent with the purposes for which
juvenile courts were created. Thus, the circuit
court would have had no basis to conclude that the
special juvenile judge was not proceedings[sic] in
accordance with the essential requirements of the
law.
In the Matter of McCloud, 1993 WL 194041, at *7-*8.
In the instant case, the juvenile court's order denying
appellant's motion to suppress was an interlocutory order. The
circuit court was without jurisdiction under section 37-1-159 to
review this order of the juvenile court. Thus, the circuit court's
6 October 1994 order, addressing the juvenile court's decision on
the motion to suppress, and the court's 7 December 1994 order,
stating that the parties had agreed that the juvenile was to be
declared a delinquent child, are void. Appellant did not perfect
an appeal of the final order of the juvenile court, which declared
him an unruly child, as required by Tennessee Code Annotated
section 37-1-159. Therefore, the circuit court was without
jurisdiction to address this issue.
The circuit court's amended order of 30 January 1995,
purporting to preserve appellant's right to appeal those issues
included in his motion to suppress pursuant to Tennessee Rule of
Criminal Procedure 37, is also void. Tennessee Rule of Criminal
Procedure 37 has no application to juvenile proceedings, either in
8
the juvenile court or in a proper appeal to the circuit court.
This was not a criminal proceeding. Tennessee Rule of Juvenile
Procedure 21 governs the taking of a plea from a juvenile to being
an unruly or delinquent child. Even if the rules did authorize the
circuit court to proceed under Tennessee Rule of Criminal Procedure
37, the circuit court, in this case, did not properly follow the
procedures set forth in Rule 37 and by our Supreme Court in State
v. Preston, 759 S.W.2d 647 (Tenn. 1988). Further, because the
circuit court's order of 7 December 1994 had become final, it had
no authority to amend the order on 30 January 1995. See Tenn. R.
Civ. P. 59.05 (1995).
Because the circuit court lacked subject-matter jurisdiction
the orders it entered in this case were void. Because these orders
are void and there is nothing to appeal from, the appellant's
notice of appeal is a nulity.
Therefore, the appeal is dismissed, and the cause is
remanded to the trial court for any further necessary proceedings.
Costs on appeal are taxed to the plaintiff/appellant.
__________________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________________
BEN H. CANTRELL, JUDGE
_________________________________
WILLIAM C. KOCH, JR., JUDGE
9