Tennessee Rule 37 Certified-Question Appeals: Record Colloquy Best Practice and Vacatur/Withdrawal Remedy When Not Dispositive

I. Introduction

State of Tennessee v. Torrian Seantel Bishop (Tenn. Aug. 12, 2026) is a Tennessee Supreme Court decision addressing a recurring procedural failure point in criminal appeals: when a defendant enters a conditional guilty plea and attempts to reserve a certified question of law for appellate review under Tennessee Rule of Criminal Procedure 37(b)(2), the question must be “dispositive of the case.”

The case arose after Union City police stopped Mr. Bishop for driving on a suspended license, an officer claimed to smell marijuana, and a warrantless car search revealed a stolen handgun. Mr. Bishop moved to suppress the handgun, arguing that because hemp is legal and officers cannot reliably distinguish hemp odor from marijuana odor, “plain smell” alone could not supply probable cause. The trial court initially granted suppression but reversed after the State relied on then-existing intermediate authority (including State v. Hampton) stating marijuana odor still provided probable cause.

Mr. Bishop entered a conditional plea reserving a certified question challenging probable cause “based exclusively on the allegedly plain smell of marijuana” given hemp legalization. The Court of Criminal Appeals first addressed the merits (Bishop I), but after the Tennessee Supreme Court decided State v. Green (hemp legalization’s effect on probable-cause analysis), the Supreme Court remanded. On reconsideration, the Court of Criminal Appeals dismissed, holding the certified question was not dispositive because Green required a totality-of-the-circumstances approach (Bishop II).

The Supreme Court granted review both to decide whether the certified question was dispositive and—more broadly—to consider improvements to the certified-question procedure that has often resulted in dismissed appeals and unreviewed issues.

II. Summary of the Opinion

The Tennessee Supreme Court announced three key procedural clarifications:

  1. Best practice: Trial courts should conduct an on-the-record colloquy (typically at the plea hearing) in which the parties explain precisely how the certified question is dispositive, and the trial court makes findings to support its determination.
  2. New remedy upon non-dispositive determination: If an appellate court determines a certified question is not dispositive, it cannot consider the appeal, but it should vacate the judgment and remand to allow the defendant an opportunity to withdraw the conditional guilty plea.
  3. Dispositive determination is “question-plus-record”: Whether a question is dispositive is assessed not by viewing the text in isolation, but by considering the certified question together with the record and the governing legal framework.

Applying these clarifications, the Court held the Court of Criminal Appeals erred in concluding the question was not dispositive after Green. Green did not change the probable-cause analytical framework (totality of the circumstances), and the record provided the relevant facts for that analysis. The case was remanded to the Court of Criminal Appeals to consider the certified question on its merits.

III. Analysis

A. Precedents Cited

1. The certified-question framework and its “quagmire”

  • State v. Preston, 759 S.W.2d 647 (Tenn. 1988): The foundational case operationalizing Rule 37’s sparse text by requiring (among other things) that the certified question be stated explicitly in the judgment/order, clearly define the scope and limits, show consent, and reflect the parties’ and trial court’s view that the question is dispositive. Bishop treats Preston as indispensable but refines the consequences of a non-dispositive determination.
  • State v. Thompson, 131 S.W.3d 923 (Tenn. Crim. App. 2003) and State v. Bolka, No. W2018-00798-CCA-R3-CD, 2019 WL 1958110 (Tenn. Crim. App. Apr. 30, 2019): Cited for the widely acknowledged dysfunction of certified-question practice (“quagmire,” “trap for the unwary”). These cases support the Supreme Court’s motivation to reduce procedural dismissals that undermine the intended efficiency of Rule 37.
  • State v. Armstrong, 126 S.W.3d 908 (Tenn. 2003): Quoted for the proposition that Preston sought a “simple, uniform method” and that the original Rule 37 text lacked guidance—context for why the Supreme Court again acts to clarify procedure.
  • State v. Day, 263 S.W.3d 891 (Tenn. 2008): Used to explain Rule 37 as a narrow exception to the general waiver consequences of guilty pleas and to frame certified questions as a judicial-economy tool.
  • State v. Rowland, 520 S.W.3d 542 (Tenn. 2017): Reinforces the general rule that guilty pleas waive most non-jurisdictional defects, demonstrating why Rule 37 compliance is crucial for defendants.

2. “Dispositive of the case” and the role of the record

  • State v. Dailey, 235 S.W.3d 131 (Tenn. 2007): Central to Bishop. Dailey reversed a dismissal where an on-the-record plea colloquy clarified that suppression would end the prosecution. Bishop uses Dailey to justify encouraging colloquies and to underscore that appellate courts should decide dispositiveness on the record before them rather than speculating about missing evidence.
  • State v. Walton, 41 S.W.3d 75 (Tenn. 2001): Supplies the classic definition: a question is dispositive when the appellate court must either affirm the conviction or reverse and dismiss the charges. It is also cited for the Court’s willingness, in “special circumstances,” to fashion relief allowing withdrawal of a plea—an antecedent to Bishop making vacatur/remand the standard remedy.
  • State v. Scott, 619 S.W.3d 196 (Tenn. 2021): Cited for the standard of review—dispositiveness is a question of law reviewed de novo.
  • State ex rel. Lewis v. State, 347 S.W.2d 47 (Tenn. 1961): Cited to caution against advisory opinions; this supports the Court’s insistence that dispositiveness and merits must be rooted in the record.

3. Remedy and plea-agreement principles

  • State v. Mellon, 118 S.W.3d 340 (Tenn. 2003) and State v. Howington, 907 S.W.2d 403 (Tenn. 1995): Establish that contract principles generally apply to plea agreements and that withdrawal may be the appropriate remedy when an agreement’s fundamental condition fails. Bishop leverages these to justify allowing defendants to withdraw conditional pleas when the certified-question condition collapses.
  • State v. Wilkes, 684 S.W.2d 663 (Tenn. Crim. App. 1984): A pre-Preston example where vacatur/withdrawal was used to avoid unfairness. Bishop cites it to show the remedy is not unprecedented.
  • Tennessee Rule of Criminal Procedure 11(c)(5): While not a case, it is pivotal to the Court’s reasoning by analogy: when a trial court rejects a plea agreement with conditions, it must allow withdrawal. The Court aligns certified-question conditional pleas with this structure.

4. Probable cause after hemp legalization and the “Green” pivot

  • State v. Green, 697 S.W.3d 634 (Tenn. 2024): The substantive search-and-seizure backdrop. Green rejected any notion of a per se probable-cause rule based solely on a drug dog’s alert and reaffirmed a totality-of-the-circumstances approach, quoting Florida v. Harris, 568 U.S. 237 (2013). In Bishop, Green is used procedurally: it did not change the analytical framework, so the certified question did not become non-dispositive merely because the trial court’s suppression ruling had been framed in “odor alone” terms.
  • State v. England, 19 S.W.3d 762 (Tenn. 2000) and Florida v. Harris, 568 U.S. 237 (2013): Cited in Green and discussed in Bishop to emphasize that probable cause remains a commonsense, totality-based inquiry.
  • State v. Hampton, No. W2021-00938-CCA-R3-CD, 2022 WL 16919950 (Tenn. Crim. App. Nov. 14, 2022): The intermediate precedent that influenced the trial court’s reversal on suppression; it illustrates why defendants were litigating “odor vs. hemp” issues and why appellate clarification in Green matters.
  • State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016): Cited for the proposition that probable cause is an objective inquiry that includes “all relevant facts and circumstances demonstrated by the proof, including those not relied upon by the officer.” This supports the Court’s rejection of an overly cramped view of what facts may be considered in the “totality.”

5. Institutional authority and caution about procedural change

  • Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422 (Tenn. 2011): Invoked by the State as a caution against sweeping procedural change by case decision rather than formal rulemaking.
  • State v. Wooden, 478 S.W.3d 585 (Tenn. 2015) and State v. Mallard, 40 S.W.3d 473 (Tenn. 2001): Cited for the Court’s authority to interpret rules and its inherent power to promulgate procedural rules—used to justify incremental refinement here.

6. Federal comparison and the “dispositive” debate

  • United States v. Bundy, 392 F.3d 641 (4th Cir. 2004): Used to show that even where a rule is textually more permissive (federal conditional pleas), courts may still impose a case-dispositive requirement in practice. This supports the Tennessee Supreme Court’s decision not to “mirror” federal procedure wholesale.
  • Federal Rule of Criminal Procedure 11(a)(2): Discussed to contrast the federal “specified pretrial motion” reservation mechanism with Tennessee’s different Rule 37 text requiring dispositiveness.

7. Companion decision

  • State v. Burrell, No. E2023-01404-SC-R11-CD, ___ S.W.3d ___ (Tenn. 2026): Released simultaneously; it addresses the distinct Rule 37 requirement that the question “identif[y] clearly the scope and limits of the legal issue reserved.” Bishop imports a “question-plus-record” sensibility similar to the Court’s approach in Burrell, but applied to dispositiveness.

B. Legal Reasoning

1. “Dispositive” is a jurisdictional gatekeeping requirement, but the Court softens the consequences

The Court reaffirms the core premise of Preston and Rule 37: appellate courts may not reach the merits unless the certified question is dispositive. This is treated as a threshold limitation on the availability of certified-question review (hence the history of dismissals).

The Court then addresses the fairness problem created by that threshold rule: defendants frequently enter conditional pleas expecting appellate review, only to lose the appeal on a technical or analytical dispositiveness determination—leaving the conviction intact without review. Rather than removing the dispositive requirement (which would conflict with Rule 37’s text), the Court reforms the remedy when dispositiveness fails.

2. Best practice: on-the-record colloquy to demonstrate dispositiveness

Drawing from Dailey, the Court encourages (but does not mandate) an on-the-record colloquy where:

  • the parties articulate why the issue resolves the prosecution (or does not),
  • the State can confirm whether it can proceed without the challenged evidence, and
  • the trial court makes findings that will allow an appellate court to verify dispositiveness without speculation.

The Court’s decision to make this a “best practice” rather than a requirement is significant: it respects the rule’s silence on colloquies, acknowledges that dispositiveness can be obvious in some cases, and avoids creating another rigid procedural tripwire.

3. New rule: vacatur and remand to allow withdrawal when appellate court finds non-dispositive

The Court’s principal doctrinal innovation is remedial. It reasons by analogy to:

  • Rule 11(c)(5), which requires plea withdrawal opportunity when a trial court rejects a plea agreement with conditions, and
  • contract-law principles in Mellon and Howington, under which a plea conditioned on receiving a benefit cannot fairly stand if that condition fails.

From this, the Court holds: when an appellate court determines the question is not dispositive, it must dismiss (no merits review), but should also vacate the judgment and remand so the defendant may withdraw the conditional plea.

Practically, this recalibrates incentives: defendants are no longer trapped into an unreviewed conviction by an appellate threshold ruling; the system returns the parties to a pre-plea posture where they can renegotiate, litigate, or proceed to trial.

4. “Question-plus-record” approach to dispositiveness

The Court rejects the notion that dispositiveness can be evaluated by examining the certified question’s wording alone. Instead, dispositiveness is assessed by examining:

  • the certified question,
  • the appellate record containing the relevant facts, and
  • the governing legal framework (here, totality-of-the-circumstances probable cause).

This is a direct response to Bishop II, which treated the question’s “odor-only” phrasing as incompatible with Green’s totality requirement. The Supreme Court reasons that even if the trial court articulated its suppression decision in “odor alone” terms, the record contains the circumstances that would be evaluated under the proper legal framework, allowing an appellate court to determine whether suppression is required and, therefore, whether the convictions stand.

5. Application to Bishop: Green did not change the framework; the record supplies the totality

The Court’s case-specific holding is narrow but important: Green “did not alter the probable-cause analytical framework.” Because totality-of-the-circumstances analysis already governed probable cause, the certified question did not become non-dispositive simply because Green reiterated that point or because the trial court’s reasoning was abbreviated.

The Supreme Court does not decide whether probable cause existed. It decides only that the question is dispositive, meaning the Court of Criminal Appeals must decide the merits on remand.

C. Impact

1. A major procedural safety valve for conditional pleas

The most significant systemic impact is the new default remedy: vacatur and the opportunity to withdraw the conditional guilty plea if the appellate court finds the question non-dispositive. This reduces the harshness of prior practice—where dismissal left a conviction in place—and makes conditional pleas less perilous for defendants.

2. Strong incentive for better trial-court records (and fewer jurisdictional dismissals)

By endorsing the Dailey-style colloquy as best practice, Bishop encourages trial judges and prosecutors to create a clear record of dispositiveness. This should reduce the frequency of dismissals based on uncertainty about whether other evidence exists or whether the prosecution can proceed.

3. More realistic use of “totality of circumstances” in certified questions

The “question-plus-record” approach makes it harder for appellate courts to dismiss appeals merely because certified questions are not perfectly drafted to mirror doctrinal phrasing (e.g., explicitly saying “totality of the circumstances”), so long as the question and record together show that the appeal will either sustain or end the prosecution.

4. Effects on suppression litigation in the hemp era

Although the Court does not resolve whether “odor alone” is enough post-hemp legalization, it ensures that defendants can meaningfully obtain appellate review of such questions when properly reserved. This matters because odor-based probable cause is a common vehicle-search justification, and hemp legalization complicates the inference from odor to criminality.

5. Relationship to State v. Burrell

Bishop and State v. Burrell together function as a two-part refinement of Rule 37 practice: Burrell addresses clarity of scope and limits; Bishop addresses dispositiveness, the record used to assess it, and the remedy when dispositiveness fails.

IV. Complex Concepts Simplified

  • Conditional guilty plea: A guilty plea entered on the condition that the defendant may still appeal a specified legal issue. If the defendant wins the appeal under the applicable rule, the plea’s consequences may be undone.
  • Certified question of law: A precise legal question written into the judgment/order that the defendant reserves for appeal under Rule 37(b)(2).
  • “Dispositive of the case”: The appeal must determine the outcome—if the defendant wins, the charges must be dismissed (or the conviction cannot stand); if the defendant loses, the conviction is affirmed.
  • Probable cause: The level of justification required for many searches—whether the facts would make a reasonable person think evidence of a crime or contraband will be found.
  • Totality of the circumstances: Courts do not use a single fact as an automatic rule; they consider all relevant facts together. A single fact (like odor) can be important, but it is weighed with everything else.
  • Vacate the judgment: The appellate court nullifies the conviction judgment, sending the case back so the defendant can decide whether to withdraw the plea and continue litigating.

V. Conclusion

State v. Bishop is a procedural landmark for Tennessee certified-question appeals. Without altering Rule 37’s requirement that the question be dispositive, the Court substantially improves fairness and administrability by (1) endorsing on-the-record colloquies as a best practice to demonstrate dispositiveness, (2) adopting a “question-plus-record” approach to deciding dispositiveness, and (3) most importantly, requiring vacatur and remand to permit withdrawal of the conditional guilty plea when an appellate court finds the question is not dispositive.

The decision responds directly to decades of confusion traced to State v. Preston’s strict prerequisites and the many dismissals that followed. Going forward, Bishop should reduce “trap for the unwary” outcomes, produce cleaner records for appellate review, and ensure that conditional pleas do not become one-way doors when certified-question jurisdiction fails.