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January 2013 Archives

Certified Question of Law Must Be Specific

A certified question of law is a specific and limited appeal of a legal issue in a criminal case. It may arise where a criminal defendant, after having lost a pre-trial motion on a critical piece of evidence, proceeds to plead guilty, with the agreement of the state and the trial court that the certified question may be reserved for appeal. The question must be dispositive of the case (resulting in a different outcome if resolved favorably to the defendant) and must be stated specifically. The question must be on the judgment or attached to the judgment, and certified by the trial court as dispositive of the case. There are strict requirements which must be met to preserve a certified question and it is not uncommon for these appeals to be dismissed due to the failure to properly preserve and state the question. The case of State v. Gephart, W2011-02225-CCA-R3-CD (Tenn.Crim.App. 1-16-2013) is a recent example of one of these appeals being dismissed without reaching the merits.

Certified Question of Law Must Be Specific

A certified question of law is a specific and limited appeal of a legal issue in a criminal case. It may arise where a criminal defendant, after having lost a pre-trial motion on a critical piece of evidence, proceeds to plead guilty, with the agreement of the state and the trial court that the certified question may be reserved for appeal. The question must be dispositive of the case (resulting in a different outcome if resolved favorably to the defendant) and must be stated specifically. The question must be on the judgment or attached to the judgment, and certified by the trial court as dispositive of the case. There are strict requirements which must be met to preserve a certified question and it is not uncommon for these appeals to be dismissed due to the failure to properly preserve and state the question. The case of State v. Gephart, W2011-02225-CCA-R3-CD (Tenn.Crim.App. 1-16-2013) is a recent example of one of these appeals being dismissed without reaching the merits.

Certified Question of Law Must Be Specific

A certified question of law is a specific and limited appeal of a legal issue in a criminal case. It may arise where a criminal defendant, after having lost a pre-trial motion on a critical piece of evidence, proceeds to plead guilty, with the agreement of the state and the trial court that the certified question may be reserved for appeal. The question must be dispositive of the case (resulting in a different outcome if resolved favorably to the defendant) and must be stated specifically. The question must be on the judgment or attached to the judgment, and certified by the trial court as dispositive of the case. There are strict requirements which must be met to preserve a certified question and it is not uncommon for these appeals to be dismissed due to the failure to properly preserve and state the question. The case of State v. Gephart, W2011-02225-CCA-R3-CD (Tenn.Crim.App. 1-16-2013) is a recent example of one of these appeals being dismissed without reaching the merits.

Double Jeopardy is Not Implicated by Pre-Trial Bond Detention

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution (applied to the States through the Fourteenth Amendment) protects against being charged or punished twice for a single offense. In criminal cases, questions sometimes arise as to whether a particular criminal charge or procedure violates double jeopardy protection. In the recent Tennessee case of State v. Larsen, W2011-00976-CCA-R3-CD (Tenn.Crim.App. 1-9-2013), a Defendant who pled guilty to driving under the influence (DUI) of an intoxicant raised, by certified question of law, the appellate issue of whether his Criminal Court conviction was a double jeopardy violation after he had already been "punished" in General Sessions Court by incarceration under a $1,000 bond, pursuant to the General Sessions Court policy of a mandatory minimum bond for DUI cases.

Double Jeopardy is Not Implicated by Pre-Trial Bond Detention

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution (applied to the States through the Fourteenth Amendment) protects against being charged or punished twice for a single offense. In criminal cases, questions sometimes arise as to whether a particular criminal charge or procedure violates double jeopardy protection. In the recent Tennessee case of State v. Larsen, W2011-00976-CCA-R3-CD (Tenn.Crim.App. 1-9-2013), a Defendant who pled guilty to driving under the influence (DUI) of an intoxicant raised, by certified question of law, the appellate issue of whether his Criminal Court conviction was a double jeopardy violation after he had already been "punished" in General Sessions Court by incarceration under a $1,000 bond, pursuant to the General Sessions Court policy of a mandatory minimum bond for DUI cases.

Double Jeopardy is Not Implicated by Pre-Trial Bond Detention

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution (applied to the States through the Fourteenth Amendment) protects against being charged or punished twice for a single offense. In criminal cases, questions sometimes arise as to whether a particular criminal charge or procedure violates double jeopardy protection. In the recent Tennessee case of State v. Larsen, W2011-00976-CCA-R3-CD (Tenn.Crim.App. 1-9-2013), a Defendant who pled guilty to driving under the influence (DUI) of an intoxicant raised, by certified question of law, the appellate issue of whether his Criminal Court conviction was a double jeopardy violation after he had already been "punished" in General Sessions Court by incarceration under a $1,000 bond, pursuant to the General Sessions Court policy of a mandatory minimum bond for DUI cases.

Post-Conviction Relief is Not Available for Expunged Charges

In Tennessee, a person who has pled guilty to a crime may seek post-conviction relief from that judgment of conviction, within one year of the judgment becoming final. In the recent case of Rodriguez v. State, M2011-01485-CCA-R3-PC (Tenn.Crim.App. 1-7-2013), the Tennessee Court of Criminal Appeals considered whether the guilty plea must result in an actual conviction before post-conviction relief is available. The majority of the panel concluded that where no conviction exists, there is no claim for post-conviction relief.

Post-Conviction Relief is Not Available for Expunged Charges

In Tennessee, a person who has pled guilty to a crime may seek post-conviction relief from that judgment of conviction, within one year of the judgment becoming final. In the recent case of Rodriguez v. State, M2011-01485-CCA-R3-PC (Tenn.Crim.App. 1-7-2013), the Tennessee Court of Criminal Appeals considered whether the guilty plea must result in an actual conviction before post-conviction relief is available. The majority of the panel concluded that where no conviction exists, there is no claim for post-conviction relief.

Post-Conviction Relief is Not Available for Expunged Charges

In Tennessee, a person who has pled guilty to a crime may seek post-conviction relief from that judgment of conviction, within one year of the judgment becoming final. In the recent case of Rodriguez v. State, M2011-01485-CCA-R3-PC (Tenn.Crim.App. 1-7-2013), the Tennessee Court of Criminal Appeals considered whether the guilty plea must result in an actual conviction before post-conviction relief is available. The majority of the panel concluded that where no conviction exists, there is no claim for post-conviction relief.

Evidence of a Prior Consistent Statement is Sometimes Admissible

In a criminal trial, testimonial evidence from witnesses is presented by the witness' live testimony at trial, subject to cross-examination by the opposing party. Generally, a prior (out of court) statement of a witness consistent with the witness testimony is not admissible to bolster the credibility of the testimony. There are exceptions to this rule though. If an opposing party challenges the testimony by suggesting it was recently fabricated, deliberately false, or inconsistent with a prior statement of the witness, then a prior (out of court) consistent statement may be introduced. This occurred in the recent case of State v. Beu, E2012-00176-CCA-R3-CD (Tenn.Crim.App. 12-20-2012).

Evidence of a Prior Consistent Statement is Sometimes Admissible

In a criminal trial, testimonial evidence from witnesses is presented by the witness' live testimony at trial, subject to cross-examination by the opposing party. Generally, a prior (out of court) statement of a witness consistent with the witness testimony is not admissible to bolster the credibility of the testimony. There are exceptions to this rule though. If an opposing party challenges the testimony by suggesting it was recently fabricated, deliberately false, or inconsistent with a prior statement of the witness, then a prior (out of court) consistent statement may be introduced. This occurred in the recent case of State v. Beu, E2012-00176-CCA-R3-CD (Tenn.Crim.App. 12-20-2012).

Evidence of a Prior Consistent Statement is Sometimes Admissible

In a criminal trial, testimonial evidence from witnesses is presented by the witness' live testimony at trial, subject to cross-examination by the opposing party. Generally, a prior (out of court) statement of a witness consistent with the witness testimony is not admissible to bolster the credibility of the testimony. There are exceptions to this rule though. If an opposing party challenges the testimony by suggesting it was recently fabricated, deliberately false, or inconsistent with a prior statement of the witness, then a prior (out of court) consistent statement may be introduced. This occurred in the recent case of State v. Beu, E2012-00176-CCA-R3-CD (Tenn.Crim.App. 12-20-2012).

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