On August 12, 2026, the Tennessee Supreme Court issued two opinions, State of Tennessee v. Torrian Seantel Bishop and State of Tennessee v. William Tony Burrell, that serve as a departure from the nearly impossible certified question procedure outlined in Tennessee Rule of Criminal Procedure 37(b)(2)(A). The requirements set forth in the rule have, for many years, been a source of confusion and frustration, as they are construed narrowly and even the slightest deviation from the requirements resulted in a dismissal of the appeal. While the text of the rule remains the same, the Court took steps to clarify certain principles regarding two key requirements of the rule: (1) that the question be “dispositive of the case” and (2) that the question identify clearly the scope and limits of the legal issue reserved.
In Burrell, the Court of Criminal Appeals dismissed the appeal, stating that the question as presented did not clearly identify the scope and limits of the legal issue reserved for appeal. The Tennessee Supreme Court clarified that a sufficient question must “delineate the range and boundaries of the subject matter to be decided.” Previously, if the four corners of the question did not provide sufficient information to make this determination the appeal would be dismissed. The Tennessee Supreme Court now holds that appellate courts must review the certified question in conjunction with the record to identify the scope and limits of the issue. This allows for a broader and more expansive review of the question and the record, which in turn should result in fewer dismissals for failure to adequately identify the scope and limits of the issue reserved.
In Bishop, the Court of Criminal Appeals dismissed the appeal upon a finding that the question was not dispositive of the case. Reversing, the Tennessee Supreme Court left the procedure outlined in Tennessee Rule of Criminal Procedure 37(b)(2)(A) intact, but encouraged the parties and the trial court to conduct an on-the-record colloquy at the guilty plea hearing, or otherwise, in which the parties articulate precisely how the certified question is dispositive of the case, and in which the trial court makes findings to facilitate the determination of the issue. This procedure is not mandated but strongly encouraged. Moreover, the Court held that in the event a defendant enters a conditional plea and the question is found on appeal not to be dispositive, the conviction should be vacated and the case remanded to provide the defendant an opportunity to withdraw the conditional plea. At a minimum, this decision eliminates some of the perils of embarking on a certified question appeal and hopefully makes this a useful tool once again.