        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT JACKSON

                      JUNE SESSION, 1999

STATE OF TENNESSEE,      )       C.C.A. NO. W1998-00656-CCA-R3-CD
                         )
      Appellee,          )
                         )       GIBSON COUNTY    FILED
VS.                      )
                         )                          March 10, 2000
KAWASKI DEVEL TAYLOR,    )       HON. STEVE STAFFORD,
                         )       JUDGE         Cecil Crowson, Jr.
                                              Appellate Court Clerk
      Appellant.         )
                         )       (Withdrawal of Guilty Plea)


              ON APPEAL FROM THE JUDGMENT OF THE
                CIRCUIT COURT OF GIBSON COUNTY


FOR THE APPELLANT:                    FOR THE APPELLEE:

HAROLD R. GUNN                        PAUL G. SUMMERS
P.O. Box 444                          Attorney General and Reporter
Humboldt, TN 38343
                                      PATRICIA C. KUSSMANN
                                      Assistant Attorney General
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      CLAYBURN PEEPLES
                                      District Attorney General
                                      110 College Street, Suite 200
                                      Trenton, TN 38382




OPINION FILED ________________

APPEAL DISMISSED IN PART; JUDGMENT OF TRIAL COURT AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

        The Defendant, Kawaski Devel Taylor, seeks to appeal as of right from an

order of the trial court denying a motion to set aside his guilty plea. Because we

conclude that this issue is not prop erly before us, we dismiss that part of the

appeal. W e affirm the De fendant's sen tence for seco nd degree murder.



        The Defendant was indicted for the offenses of first degree murder and

espe cially aggrava ted robb ery.    On A ugust 3 , 1998, pursuant to a plea

agreem ent, the Defendant pleaded guilty to the offense of second degree

murde r. The plea agreement provided that the Defendant would be sentenced

as a Range I standard offender, with the length of the sentence to be determined

by the trial court. The trial judge accepted the Defendant's guilty plea at that

time.



        A sentencing hearing was conducted on September 17, 1998. At the

conclusion of the hearing, the trial judge sentenced the Defendant to twenty-one

years in the Department of Correction. Immediately after being sentenced, the

Defendant advise d the tria l court th at he “d idn't want the guilty plea.”   The

Defendant's attorney then asked the trial judge to appoint the Defendant a new

attorney “for the appeal” because he — the Defendant's attorney at the guilty plea

proceeding and at sentencing — would need to be a witness concerning whether

the Defe ndan t's guilty plea was knowingly and voluntarily entered. After some

discussion conc erning this matter, the trial judge advised counsel to file whatever

motions or other pleadings he deemed appropriate in the case. The judgment

of conviction and sentencing order were entered and filed September 17, 1998.


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      The following day, September 18, the Defendant, acting through the same

attorney who had represented him at his gu ilty plea proceeding and at

sentencing, filed a motion to set aside his guilty plea and a motion to appoint

different coun sel. The pleading also stated that it was to serve as a notice of an

appeal of the guilty plea, “if the trial judge refuses to set a hearing on my motion

to set aside a guilty plea.” The pleading prim arily alleg ed tha t the D efend ant's

attorney had advised him that his sentence would be fifteen years because his

attorney had b een “le d to be lieve” by the dis trict attorney general and the trial

judge that the sente nce w ould be fifteen years if there were no enhancing factors.

The document also alleged that Defendant's counsel would be a witness at a

hearing to show that the D efenda nt did not k nowing ly and volu ntarily plead guilty

to second degree murder. In addition, the document stated that the Defendant

desir ed to appeal from his guilty plea because it was not knowingly and

voluntarily made.



      No further action was taken in this matter by the trial court until October 29,

1998, at which time the court heard statements and arguments of counsel

concerning the motion to withdraw the guilty plea and the motion to appoint new

coun sel. After considera ble discussion, and after reviewing the transcript from

the guilty plea and sentencing hearing, the motions were denied by the trial cour t.

The order denying the motion to set aside the guilty plea and denying the motion

to appoint different counsel is dated November 5, 1998 and was filed November

10, 1998. On November 20, 1998, the Defendant filed a notice of appeal “from

the judgment and verdict entered in this action on the 29th day of O ctober, 1998.”




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       W ell established procedural rules prohibit us from reaching the merits of

the issues th e Defe ndant a ttempts to prese nt. W e note that the availability of an

appeal as of right by a defendant in a criminal case is governed by Rule 3(b) of

the Tennessee Rules of Appellate Procedure.             An appeal as o f right by a

defen dant in a criminal action from a judgment of conviction based on a plea of

guilty lies only (1) if ther e was a plea agree men t which explicitly reserved the right

to appeal a ce rtified question of law disp ositive of the action, (2) if the Defendant

seeks review of the sentence, and there was no plea agreement concerning the

sentence, or (3) if the issues presented for review were not waived as a matter

of law by the entry of the plea and if such issues are apparent from the record of

the procee dings alre ady had . See Tenn. R. App. P. 3(b). In this case, the

Defendant was convicted on a plea of guilty and is attempting to appeal as of

right from the trial court's de nial of his m otion to withdra w his guilty plea and/or

the trial court's de nial of his m otion to ap point new couns el. An appeal as of right

from the trial court's order denying these motions is not contemp lated b y Rule

3(b) of the Tennessee Rules of Appellate Procedure.



       A motion to withdraw a plea of g uilty in the tria l court is gover ned b y Rule

32(f) of the Tennessee Rules of Criminal Procedure. This rule provides as

follows:

              Withdrawal of Plea of Guilty. — A motion to withdraw a plea
       of guilty may be made upon a show ing by th e defe ndan t of any fa ir
       and just reason only before sentence is imposed; but to correct
       manifest injustice, the court after sentence, but before the judgment
       becomes final, may set aside the judgment of convic tion an d perm it
       the defendant to withdraw the plea.

Tenn. R . Crim. P. 32(f) (em phasis add ed).




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       It is apparent from a reading of this rule that after a judgment of conviction

becomes final, the trial judge is not authorized to set aside the judgment and

perm it the Defendant to withdraw the plea of guilty upon which the judgment was

based. The r ule sp ecifica lly provid es tha t it is only before the judgment becomes

final that a trial cou rt may se t aside the judgm ent and permit the Defen dant to

withdraw the plea. After a judg men t beco mes final, the trial cou rt gene rally is

without jurisdiction to amen d it. State v. Moore , 814 S.W.2d 381, 382 (Tenn.

Crim. App . 1991).



       W e hold th at the filin g of a m otion to withdra w a ple a of guilty does not

suspend the time w ithin which a judgm ent of conviction based upon th e guilty

plea becomes final. If the trial court has not ruled upon the motion to withdraw

the guilty plea prior to the time the judgment becomes final, the motion becomes

moot because the trial court no longer has authority to grant the motion. When

such a motion is filed after sentencing, the trial judge is under n o obligatio n to

rule on the motion because the judgment will become final even in the absence

of a ruling on the motion.



       In this case the judgment of conviction was entered on September 17,

1998. As a ge neral rule, th e judgment of a trial court becom es final thirty days

after its entry u nless a time ly notice of app eal or a spec ified po st-trial m otion is

filed. State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); Tenn. R. App.

P. 4(a), (c). Once a notice of appeal has been filed, the jurisdic tion of th is Court

attaches, and the trial court lose s jurisdiction . Pendergrass, 937 S.W.2d at 837.

Once the trial court loses jurisdiction, it generally has no power o r authority




                                           -5-
to further am end or s et aside its ju dgme nt.     Id.   A judgment beyond the

jurisdiction o f the court is v oid. Id.



       The Defendant's judgment of conviction and sentence was entered on

September 17, 1998. T he only a ppeal a s of right ava ilable to the Defendant was

to seek a review of th e sente nce im posed . See Tenn. R. App. P. 3(b). Included

in the De fenda nt's pleading filed on September 18, 1998 was a notice of appeal

of the “guilty ple a.” This notice of appeal may be considered as notice of appeal

from the sentence imposed by the trial co urt. See Tenn. R. App . P. 3(e), (f). In

this appeal the Defendant presents no issues for review pertaining to h is twenty-

one year sentence. This Court generally considers only issues presented for

review. See Tenn. R . App. P. 13(b). Accordingly, the judgme nt of the trial court

sente ncing the Defendant to twenty-one years in the Department of Correction

is affirmed.



       At the time the trial court ruled on the Defendant's motion to withdraw his

guilty plea, the court was without jurisdiction or authority to do so because either

(1) the jud gme nt of co nviction had b ecom e final or (2) the Defendant had already

filed a notice o f appea l. Thus, th e trial judge's o rder den ying the m otion to

withdraw the guilty plea was a nullity, and the Defendant's subsequent attempt

to appeal from that order is accordingly dismissed.



       The judgment of conviction for second degree murder and sentence of

twenty-one years for that offense is affirm ed. Th e Def enda nt's attempt to appeal

from the order denying the motion to withdraw the guilty plea is dismissed.




                                           -6-
                              ______________________________
                              DAVID H. WELLES, JUDGE



CONCUR:



________________________________
DAVID G. HAYES, JUDGE



________________________________
NORMA McGEE OGLE, JUDGE




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