State v. Norris

47 S.W.3d 457

STATE of Tennessee v. Robert A. NORRIS and Lida Meador.

Court of Criminal Appeals of Tennessee, at Knoxville.

May 31, 2000.

COPYRIGHT MATERIAL OMITTED

Joe L. Finley, Assistant Public Defender, for appellant, Robert A. Norris.

Randall A. York, Crossville, TN, for appellant, Lida Meador.

Paul G. Summers, Attorney General & Reporter, Ellen H. Pollack, Assistant Attorney General, William Edward Gibson, District Attorney General, David Alan Patterson and Anthony J. Craighead, Assistant District Attorneys General, for appellee, State of Tennessee.

No Permission to Appeal Applied for to the Supreme Court

OPINION

WITT, J., delivered the opinion of the court, in which WOODALL, J., joined.

This direct appeal presents a certified question of law pursuant to Rule 37(b)(2)(i), Tennessee Rules of Criminal Procedure. The defendants pleaded guilty to manufacture of a controlled substance, subject to reservation of a certified question. In their certified question, the defendants contend that law enforcement officers conducted an unreasonable search and seizure when the officers made thermal image scans of their home, that the search warrant did not allege sufficient facts to establish probable cause, and that the information upon which the search warrant was issued was stale. One defendant received judicial diversion and is not properly before this court on a Rule 3 appeal, and we decline to grant her a Rule 10 extraordinary appeal. We conclude that thermal imaging is not an unconstitutional search, and the affidavit information was not stale. However, because the search warrant affidavit failed to establish probable cause for the search, we reverse the trial court's denial of Norris's motion to suppress. Norris's conviction is vacated and his charge is dismissed. Meador's appeal is dismissed.

The defendants, Robert A. Norris and Lida Meador, appeal a certified question of law pursuant to Rule 37(b)(2)(i), Tennessee Rules of Criminal Procedure. In the Cumberland County Criminal Court, the defendants pleaded guilty to manufacture of a controlled substance, a class E felony, subject to reservation of a certified question. In their certified question, the defendants contend that law enforcement officers infringed on their rights to be free of unreasonable searches and seizures pursuant to the Fourth Amendment of the United States Constitution and article 1, section 7 of the Tennessee Constitution, that the search warrant did not allege sufficient facts to establish probable cause, and that the information upon which the search warrant was issued was stale. After hearing oral argument and reviewing the record and the briefs of the parties, we reverse the trial court's denial of Norris's motion to suppress, vacate Norris's conviction and dismiss his charge. We dismiss Meador's appeal.

The facts in the case at bar are not in dispute. On May 5, 1997, the Cumberland County Sheriff's Department searched the defendant's residence pursuant to a search warrant issued that same day. As the result of the search, the defendants were indicted for the manufacture of a controlled substance, namely marijuana, possession with intent to sell or deliver more than one-half ounce of marijuana, and possession of drug paraphernalia. See Tenn. Code Ann. § 39-17-417 (1997) (manufacture and possession with intent to sell or deliver); Tenn. Code Ann. § 39-17-425 (1997) (drug paraphernalia). After the trial court denied their motion to suppress, the defendants pleaded guilty to the offense of manufacture of a controlled substance and reserved a certified question with respect to the legality of the search. Defendant Norris was sentenced to two years in the Tennessee Department of Correction, to be served on probation for two years. He was also fined $2000. Defendant Meador received judicial diversion and agreed to pay a $250 fine.

Initially, we note that Norris has properly preserved his question of law under Rule of Criminal Procedure 37(b)(2). In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our supreme court stated that

the final order or judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal must contain a statement of the dispositive certified question of law reserved by defendant for appellate review and the question of law must be stated so as to clearly identify the scope and the limits of the legal issue reserved.

Id. at 650.

In the case at bar, the trial court's order reserving the right to appeal contains a statement of the certified question which clearly identifies the scope and limits of the issue, and the order, signed by the parties, states that this issue is dispositive. Norris's judgment form contains a note that his plea of guilty was entered with the reservation that the trial court's denial of the motion to suppress is being appealed and may void the conviction. Accordingly, Norris's certified question is properly before us.

With respect to Meador, jurisdiction is not so easily determined. She entered a best interest guilty plea and was judicially diverted pursuant to Code section 40-35-313. According to this section, the court, with the consent of the defendant, defers further proceedings and places the defendant on probation without entering a judgment of conviction. Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997). A final disposition of the case does not occur until either the defendant violates a condition of the probation or the probation period ends. See id. at (a)(2). If the defendant is successful in completing probation, the charges are dismissed, "without court adjudication of guilt." Id.

While in the posture of having pleaded guilty and having been granted judicial diversion, Meador endeavors to appeal a certified question of law under Tennessee Rule of Criminal Procedure 37(b)(2). The 37(b) provisions allow the reservation of a certified question of law that is dispositive of the case, "upon a plea of guilty or nolo contendere." Tenn. R. Crim. P. 37(b)(2). However, the appeal of the reserved, certified question is controlled by Rules 37(a), (b), 32(e), and Tennessee Rule of Appellate Procedure 3(b), (c).

The interplay among these rule provisions is somewhat intricate. Rule 37(b) says, "An appeal lies from any order or judgment in a criminal proceeding where the law provides for such an appeal, and from any judgment of conviction ... upon a plea of guilty or nolo contendere," when the requirements for a reservation of a certified question are met or when other bases for a post-guilty plea are present, which bases are not applicable in the present case. Tenn. R. Crim. P. 37(b) (emphasis added). The rule defines "an appeal" as used in Rule 37 as "direct appellate review available as a matter of right." Tenn. R. Crim. P. 37(a) (emphasis added). Thus, in order for a defendant to claim the benefits of a certified question appeal under Rule 37(b), the order or judgment from which the appeal is sought must be appealable "as a matter of right."

The rules establish two types of cases which entail appeals as a matter of right. First, Tennessee Rule of Appellate Procedure 3(b) provides that, in a "criminal action, an appeal as of right by a defendant lies from any judgment of conviction entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty or nolo contendere, if the defendant entered into a plea agreement but explicitly reserved with the consent of the state and the trial court the right to appeal a certified question of law dispositive of the action" or the defendant desires to appeal a sentence or certain other issues to which he is not bound by his guilty plea, the latter being circumstances not applicable in the present case. Tenn. R. App. P. 3(b) (emphasis added). Second, Rule of Criminal Procedure 37(b) mentions additional provisions for appeals as a matter of right which do not emanate from judgments of conviction-appeals which emanate from "any order or judgment ... where the law provides" for an appeal as a matter of right. Tenn. R. Crim. P. 37(b). One must switch back to Rule of Appellate Procedure 3(b) to ascertain when the law provides for such additional appeals: "The defendant may also appeal as of right from an order denying or revoking probation, and from a judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding." Tenn. R. App. P. 3(b). Therefore, an appeal of a dispositive certified question of law may be made as a matter of right in two situations: (1) upon the entry of a judgment of conviction, which by definition sets forth "the plea, the verdict or findings, and the adjudication and sentence," Tenn. R. Crim. P. 32(e), or (2) upon the entry of one of the orders specified above. We review in turn these possibilities and their possible application to the present case.

(1) An appeal founded upon a judgment of conviction. As pointed out above, the guilty plea which results in an order of judicial diversion is not consummated into a judgment of conviction, unless the defendant breaches the conditions of his diversion/probation. Tenn. Code Ann. § 40-35-313(a)(1)(A), (2) (1997). Consequently, the rule provisions for a rightful appeal based upon a judgment of conviction do not authorize an appeal of a certified question in the present case.

(2) An appeal based upon an order denying or revoking probation or a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding. Among the alternative bases for an appeal as a matter of right, one basis-an order denying probation-makes a connection with judicial diversion. "Judicial diversion" is merely "an appellation supplied by the courts, probably to distinguish it from section 40-15-105 pretrial diversion, and the phrase is not used in the governing statute, section 40-35-313." State v. Stephen J. Udzinski and Donna Stokes, No. 01C01-9610-CC-00431, slip...