STATE v. OLIVER

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Court of Criminal Appeals of Tennessee,at Knoxville.

STATE of Tennessee, Appellee, v. Robert Guy OLIVER, Appellant.

Decided: February 23, 2000

Steven McEwen, Mountain City, TN, (On Appeal), David F. Bautista, District Public Defender, Johnson City, TN, and Robert Y. Oaks, Assistant Public Defender, Elizabethton, TN, (At Trial), for the appellant. Paul G. Summers, Attorney General of Tennessee and Patricia C. Kussmann, Assistant Attorney General of Tennessee, Nashville, TN, Joe C. Crumley, Jr., District Attorney General, Jonesborough, TN, and Mark K. Hill, Assistant District Attorney General, Elizabethton, TN, for the appellee.

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 ․“ 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.

WITT and OGLE, JJ., concur.