          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE            FILED
                           FEBRUARY SESS ION, 1998             June 12, 1998

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk

STATE OF TENNESSEE,                     )    C.C.A. NO. 03C01-9704-CR-00149
                                        )
      Appellant/Cross-Appellee,         )
                                        )    SEVIER COUNTY
V.                                      )
                                        )
                                        )    HON. BEN W. HOOPER, III, JUDGE
STEW ART W . PAIT,                      )
                                        )
      Appe llee/Cros s-Appe llant.      )    (POST -CON VICTIO N)



FOR THE APPELLEE                             FOR THE APPELLANT
CROSS-APPELLANT:                             CROSS-APPELLEE:

STEW ART W . PAIT, pro se                    JOHN KNOX WALKUP
#135240, S.T.S.R.C.F., Unit 12               Attorney General & Reporter
Route 4, Box 600
Pikeville, TN 37367                          TIMOTHY F. BEHAN
                                             Assistant Attorney General
                                             2nd Floor, Cordell Hull Building
                                             425 Fifth Avenue North
                                             Nashville, TN 37243

                                             ALFRED C. SCHMUTZER, JR.
                                             District Attorn ey Ge neral

                                             STEVEN E. HAWKINS
                                             Assistant District Attorney General
                                             125 Cou rt Avenue, Ro om 301 -E
                                             Sevierville, TN 37862


OPINION FILED ________________________

JUDG MEN T DIS MISS ING P ETIT ION F OR P OST -CON VICT ION R ELIEF IS
AFFIRMED; ORDER GRANTING A NEW SENTENCING HEARING AND
SETTING ASIDE PRIOR JUDGMENT DISMISSING PETITION FOR POST-
CONVICTION RELIEF IS REVERSED

THOMAS T. WOODALL, JUDGE
                                      OPINION
       The case before this Court is a consolidation of two appe als. Th e first is the

State ’s extraordinary appeal filed pursuant to Rule 10 of the Tennessee Rules of

Appe llate Proced ure, seeking review of th e trial court’s a ttempt to set aside its

previous orde r denying pos t-conviction relief to Petitioner, Stew art W . Pait, and its

attempt to gran t Petition er a ne w sen tencin g hea ring. T he se cond is Petitio ner’s

appeal of the trial court’s original dismissal of his petition fo r post-co nviction relief.

In this appeal, the State argues that the trial court was without jurisdiction when it set

aside its prior orde r of dismis sal of Pe titioner’s pos t-conviction petition. Th e State

further submits that the trial court erred in its order allowing a new sentence for

Petitioner. Finally, the State argues that the trial court c orrect ly denie d Petitio ner’s

petition for pos t-conv iction re lief in its first order.   We find that the trial court was

without jurisdiction to set aside its initial judgment and that Petitioner’s petition for

post-conviction relief was properly dismissed.



       Petitioner was c onvicte d of so licitation to com mit first d egree murd er in the

Sevier County Circuit Court. On September 2, 1991, this Co urt affirm ed Pe titioner’s

conviction. See State v. Stewart W. Pait, C.C.A . No. 03-C-01-9103-CR-00076,

Sevier County (Tenn. Crim. Ap p., Kno xville, Se pt. 3, 19 91). P etitione r waive d his

right to file a R ule 11 ap plication to th e supre me co urt.



       Thereafter, Petitioner filed a petition for post-conviction relief on April 25,

1994, and amended that petition on September 11, 1996. On January 31, 1997, the

trial court conducted a hearing on Petitioner’s petition for post-conviction relief and

considered Petitioner’s numerous claims in the following three categories: ex post

                                               -2-
facto sente ncing , ineffec tive ass istanc e of co unse l, and p rosec utorial miscondu ct.

The trial court found from the evidence that the offense for which Petitioner was

convicted occurred on Novem ber 3, 1989, a nd that Petitioner w as lawfully sentenced

in accordance with the Criminal Sentencing Reform Act of 1989. The court also

found that Petitioner’s sentence was properly enhanced and that the jury instructions

given were proper. The trial court further found that Petitioner received th e effective

assistance of counsel, that there was no pro secutorial misconduct, that the trial

judge sentenced Petitioner within Range I, and that there was no prejudice regarding

the range of punishment notice filed by the State. The trial court then dismissed

Petitione r’s petition for p ost-con viction relief.



       Petitioner timely filed his notice of app eal from the trial court ’s order on

February 12, 199 7. On February 25, 1997, Petitioner then filed a motion requesting

that the trial c ourt ru le on all issues in his petition and to reconsider the sentencing

issue. On April 14, 1997, some fifty-five (55) days after the order was entered

dismissing the post-conviction petition, the trial court attempted to set aside its prior

judgment and ordered that Petitioner was entitled to be resentenced pursuant to the

rulings in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993) and State v. Slate, C.C.A.

No. 03C01-9511-CC-00352, Sevier County (Tenn. Crim. App., Knoxville, Oct. 18,

1996). It is from this order that the State appeals. The Petitioner’s appeal of the trial

court’s origina l dism issal of his post-conviction petition, and the State’s Rule 10

extraordin ary appe al were c onsolida ted for ap peal.




                                        I. Jurisdiction




                                              -3-
          On Janu ary 31, 1997, the trial court sp ecifically foun d that no e x post facto

problem existed since Petitioner committed his crime after November 1, 1989, and

because he was convicted and sentenced after that date as well. Petitioner filed a

notice of appeal on February 12, 1997. On April 14, 1997, the trial court set aside

its previous order dism issing Pe titioner’s pos t-conviction petition. The trial court

further ordered that Petitioner be granted a new sentencing hearing. The trial court

based its decision on State v. S late in ordering the rese ntencing of Defen dant.

Howeve r, Slate and th e cas e befo re us c an be distinguished. In Slate, the trial

judge was ordered to resentence defendant based on our supreme court’s ruling in

State v. Pearson, 858 S.W .2d 879 . Slate, C.C.A. No. 03C0 1-951 1-CC -0035 2, slip

op. at 2-3. In Slate, the defendant was convicted of his crime in 1988. The supreme

court had previously ruled that whe n a defend ant is convicted be fore the effective

date of the 1989 Sentencing Reform Act, bu t sente nced after N ovem ber 1, 1 989, h is

sentence must be calculated under both the 1982 Act and the 1989 Act. Pearson,

858 S.W.2d 879, 884.          The defendant must then receive the more favo rable

sentence. Id. The defendant in Slate was resen tenced bec ause the ap pellate court

remanded his 1988 convic tion for resentencing. C.C.A. No. 03C01-9511-CC-00352,

slip op. at 1. Therefore, although he was originally convicted in 1988, he was not

senten ced un til after the effec tive date of th e 1989 Act. Id.



       In the instant case, Petitioner was convicted and sentenced after November

1, 1989. In fact, Petitioner committed the crime on November 3, 1989. Therefore,

Petition er doe s not g et the b enefit o f dual c alcula tions o f his sen tence , as on ly the

1989 Act applies to his ca se. Neither Slate nor Pearson applies to the case sub

judice.




                                              -4-
       Furthermore, the trial court no longer had ju risdictio n over the ca se an d cou ld

not issue orders affe cting the case. When Petitioner filed his notice of appeal on

February 12, 1997, the trial c ourt los t jurisdic tion an d this Court gained jurisdiction.

State v. Pendergrass, 937 S.W .2d 834 , 837 (T enn. 19 96); State v. Peak, 823

S.W.2d 228, 229 (Tenn. Crim. App. 1991). “Once the trial court loses jurisdiction,

it generally has no power to am end its judgm ent.” Pendergrass, 937 S.W.2d at 837;

State v. Moore, 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991). A judgment entered

after a court loses jurisdiction is vo id. Pendergrass, 937 S.W .2d at 837 . Moreover,

the trial court lost its jurisdiction to resentence Petitioner as m ore than thirty days

had pa ssed sin ce the se ntence was im posed . Moore, 814 S.W.2d at 383. Based

on the foregoing reasons, the trial court was without jurisd iction to act a s it did.



                          II. Denial of Post-Conviction Relief



       Petitioner presen ts seven issues in arguing that the trial cou rt erred in denying

his petition for post-conviction re lief. We will addre ss the issues a s they were

categorized by the trial court and then address any remaining issues at the end.



A. Ex Post Facto Sentencing

       As discussed in the jurisdictional argum ent, there is no issue as to ex post

facto senten cing in this c ase. T he crim e, the c onvictio n, and the se ntenc ing all

occurred after November 1, 1989. Therefore, the only sentencing act that applies

to the insta nt case is the 198 9 Act. Th is issue is w ithout me rit.



B. Assistance of Counsel




                                            -5-
       In determining wheth er cou nsel p rovide d effec tive ass istanc e at trial, the court

must decide w hether counsel’s performance was within the range of competence

demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To succeed on a claim that his counsel was ineffective at trial, a

petitioner bears the burden of showing that his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the deficient representation prejudiced the petition er resulting in a failure to

produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t.

2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S . 1267 (1 984); Coope r v. State, 849

S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Ten n. 1990).

To satisfy the second prong the petitioner m ust show a reaso nable p robability tha t,

but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le

doubt regarding pe titioner’s gu ilt. Strickland, 466 U .S. at 69 5. This reaso nable

probab ility must be “sufficient to underm ine confidence in the outcom e.” Harris v.

State, 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted) .



       When reviewing trial counsel’s actions, this Court should not use the be nefit

of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at

the time th ey wer e ma de in light of all facts a nd circum stance s. Strickland, 466 U.S.

at 690; see Cooper, 849 S.W.2d at 746.



       In determining whether this Petitioner has satisfied these require men ts, this

Court must give the findings of the trial court the weight of a jury verdict, and the

judgment of the tria l court w ill not be reversed unless the evidence contained in the




                                             -6-
record preponde rates agains t the finding s of fact m ade by th e trial court. State v.

Buford, 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).



       W e have reviewed Petitioner’s various claims and we find that Petitioner has

failed to prese nt any e videnc e that s hows that his attorney represented him in any

other manner than competently .         The tr ial cou rt found that his attorne y “did

adeq uately prepare and investigate the facts of the case, did pursue a motion for a

change of venue which the trial court overruled when a jury was selected, that the

Petitioner never told defense attorney that the tape recording introduced at trial was

not him or had been tamp ered w ith, and that all matters complained of by Petitioner

were adequately addressed by [his defense attorney].” We agree with the trial

court’s findings. F urtherm ore, Petition er has fa iled to show that he was prejudiced

in any way by trial coun sel’s tactics. The evidence contained in the record does not

prepon derate against the trial court’s finding tha t Petitioner received the effective

assistan ce of cou nsel. Th is issue is w ithout me rit.



C. Prosecutorial Conduct

       Petitioner did not raise prosecutorial misco nduc t in his direct a ppea l, and h is

failure to do so constitutes a waiver of th is issue. Tenn. C ode Ann . § 40-30-206 (g).

Howeve r, even if we deem this issue as not waived, it is still without merit. The trial

court found in its order dismissing the post-conviction petition that there was no

prosecutorial misconduct because the trial judge sentenced Petitioner within Range

I, and therefore , Petitioner could no t have been affected by the erroneous Notice of

Intent to S eek En hance d Punis hmen t. This issu e is withou t merit.



D. Remaining Issues

                                            -7-
       Petition er’s issues regard ing jury instructions, the indictment and the “Morgan”

hearing (issues two, three and four) are also waived. Tenn. Code Ann. § 40-30-

206(g).



       Petitioner argues that the trial court erred in allowing the prosecu tor to declare

findings of fact and conclusions of law (issues one and seven). These are not issues

for post-conviction relief since they are not an ab ridgme nt of any co nstitutiona l right.

Tenn . Code Ann. § 4 0-30-20 3.



       In closing, we find that the trial court was without jurisdiction in setting aside

its previo us ord er dism issing the Pe titioner’s post-c onvictio n petition, an d also in

ordering a new sen tencin g hea ring for P etitione r.     W e find th at the tria l court’s

original order dism issing Petitioner’s petition for po st-conviction relief was pro per.



       Therefore, the judgme nt dismissing the petition for post-convictio n relief is

affirmed. The order setting aside the judgment dismissing the post-conviction

petition and ordering a new sentencing hearing is reversed.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
WILLIAM B. ACREE, JR., Special Judge

                                            -8-
