Court of Criminal Appeals of Tennessee, Nashville
Session Date July 16, 2014
Direct Appeal from the Criminal Court for Davidson County No. 2011-D-3092 Mark Fishburn, Judge
Michael D. Noel, Brentwood, Tennessee, for the appellant, Alex Hardin Huffstutter.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Grove Collins, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall and Alan E. Glenn, JJ., joined.
NORMA McGEE OGLE, JUDGE
On October 28, 2011, a Davidson County Grand Jury returned indictment number 2011-D-3092, charging the appellant on count 1 with DUI and on count 2 with DUI, per se. On July 27, 2012, the appellant filed an application for judicial diversion. On April 11, 2013, the trial court filed a memorandum opinion, denying the application. The trial court, citing State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993), held that a person convicted of DUI was ineligible for judicial diversion.
Thereafter, on February 2, 2013, the appellant entered a plea of nolo contendre to count 1 in exchange for the dismissal of count 2. As a condition of his plea, the appellant reserved the following certified question of law: "Does T.C.A. § 40-35-313 (2007) exclude driving under the influence of an intoxicant as prohibited by T.C.A. § 55-10-401 as a type of offense for which judicial diversion was not available to [the appellant] who was otherwise qualified for judicial diversion? (Prior to the July 1, 2011 amendment to the statute)." The trial court, the appellant, and the State agreed that the certified question was dispositive of the case. However, on appeal, the State contends that the question is not dispositive. We agree.
Tennessee Rule of Criminal Procedure 37(b)(2)(A) provides that a certified question may be reserved when:
(A) the defendant entered into a plea agreement under Rule 11(c) 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, and the following requirements are met:
(i) the judgment of conviction or order reserving the certified question that is filed before the notice of appeal is filed contains a statement of the certified question of law that the defendant reserved for appellate review;
(ii) the question of law as stated in the judgment or order reserving the certified question identifies clearly the scope and limits of the legal issue reserved;
(iii) the judgment or order reserving the certified question reflects that the certified question was expressly reserved with the consent of the state and the trial court; and
(iv) the judgment or order reserving the certified question reflects that the defendant, the state, and the trial court are of the opinion that the ...