Guy Cathey pled guilty to driving under the influence of an intoxicant (“DUI”), first offense, and reserved on appeal the following two certified questions: (1) “Whether a magistrate that conducts field sobriety tasks upon a defendant prior to issuance of a warrant is qualified as [a] ‘neutral and detached’ magistrate for purposes of the Fourth Amendment to the Constitution of the United States or its laws and/or in violation of the Constitution of the State of Tennessee and its laws”; and (2) “Whether the issuance of a warrant after the administration of field sobriety tasks by a magistrate to a defendant [was] in violation of the Constitution of the State of Tennessee and/or its laws.” After the challenged warrant was issued,the Grand Jury indicted the defendant, charging him with one count of DUI. The Court of Criminal Appeals held on Monday, Dec. 5, 2011, that the certified questions are not dispositive of the defendant’s case because the subsequent indictment cured any defects in the warrant. The appeal was dismissed.
How do you preserve a question on appeal?
Tennessee Rule of Criminal Procedure 37(b) sets forth the requirements for preserving certified questions for appeal from guilty pleas: The defendant may appeal from any judgment of conviction . . . on a plea of guilty . . . if . . . the defendant entered into a plea agreement under Rule11(a)(3) 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. . . .Tenn. R. Crim. P. 37(b)(2)(A). Strict compliance with Rule 37’s requirements is mandatory. See State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003)