            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       DECEMBER SESSION, 1998          FILED
                                                       February 2, 1999

                                                    Cecil Crowson, Jr.
FRANK C. PEASE,                )                       Appellate C ourt Clerk
                               )   No. 03C01-9804-CR-00132
      Appellant                )
                               )   HAMILTON COUNTY
vs.                            )
                               )   Hon. R. Steven Bebb, Judge
STATE OF TENNESSEE,            )
                               )   (Post-Conviction)
      Appellee                 )



For the Appellant:                 For the Appellee:

Frank C. Pease, Pro Se             John Knox Walkup
8400 Middelbrook Pike, Apt. H-25   Attorney General and Reporter
Knoxville, TN 37923
                                   Ellen H. Pollack
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493


                                   William H. Cox III
                                   District Attorney General

                                   David Denny
                                   Asst. District Attorney General
                                   City and County Courts Bldg.
                                   Chattanooga, TN 37402




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                     OPINION



         The appellant, Frank C. Pease, appeals the dismissal of his pro se petition

for post-conviction relief by the Hamilton County Criminal Court.1 On December 12,

1994, the appellant entered guilty pleas to the offenses of attempt to commit

aggravated perjury and hindering a secured creditor, both class E felonies, in the

Hamblen County Criminal Court.2 The court sentenced the appellant to one year on

each count to be served concurrently as a Range I standard offender. On June 19,

1995, the appellant filed a petition for post-conviction relief collaterally attacking his

felony convictions in the Hamblen County Criminal Court. The appellant’s post-

conviction hearing was scheduled for June 16, 1997, in the Hamilton County

Criminal Court. Because the appellant failed to appear at his scheduled hearing, his

petition was dismissed. The appellant now appeals from this ruling.



         After review, we affirm the dismissal.




                                                 I. Background



         The proceedings before us present a troubled and protracted procedural

history. Six trial judges have participated in varying degrees in these proceedings.3



In addition, appointment of district attorneys general pro tem have been


         1
          The appe llant’s petitio ns w ere in itially filed in the c oun ty of co nvictio n, Ha mb len C oun ty,
but w ere la ter tra nsfe rred to Ha milto n Co unty to facilita te rev iew d ue to the fa ct tha t Hon orab le
Gary Gerbitz of Hamilton County was designated by the supreme court to preside over the
procee dings.

         2
           The appellant’s convictions stem from his concealment and sale of woodworking
equ ipm ent u sed as co llatera l in obta ining a loan f rom Jeff erso n Fin anc ial Se rvice s. In a prior c ivil
procee ding, the ap pellant perju red him self by stating that he ha d not disp osed o f the equ ipme nt.

         3
          Those judges include: Judges Porter, Beckner, Wexler, Gerbitz, Stern and Bebb. Two
substitutions were occasioned by retirement; the rem aining designations by the supreme co urt
were necessitated by the appellant’s actions in alleging judicial misconduct or recusal by the trial
judge fo r conflicts o f interest.

                                                        2
necessitated as well as substitutions of defense counsel.



         In seeking post-conviction relief, the appellant contends that his guilty pleas

were “inadvertently and involuntarily” entered and he was denied the effective

assistance of counsel. In support of these grounds, he alleges, among other things,

(1) that he was denied insulin at the Hamblen County jail the night before he entered

his guilty pleas, resulting in impaired cognitive responses at his guilty plea hearing;

(2) that because in all likelihood he would have been attired in a jail “COUNTY

ORANGE JUMPSUIT” and . . . would not be “CLEAN SHAVEN" . . . [h]e felt

frightened and threatened; (3) that he was denied a speedy trial; (4) that his lawyers

lied to him; (5) that the district attorney general’s office violated his rights; and (6)

judicial misconduct by the trial judge.4



         In May of 1997, the appellant contacted the court and requested a "speedy

hearing" on his post-conviction petition and gave the court a Connecticut telephone

number where he could be contacted. The record indicates that the appellant had

requested transfer of his probationary status to Connecticut and had relocated to

that state at this time. On June 1, 1997, the post-conviction court contacted the

appellant by leaving a message with an answering service, informing him that his

hearing was set for June 16, 1997. Sometime after business hours on Friday, June

13, a female identifying herself as the appellant’s secretary left a message with the

court that the petitioner was “out of town on business” and would be unable to



attend the hearing. The post-conviction judge became aware of this message the

following Monday morning en route from Athens to Chattanooga.



         4
           The appellant, on July 17, 1995, filed a second petition for post-conviction relief, arising
from a guilty p lea to ass ault, w hich was dism isse d. Th e des ignat ed po st-co nvictio n jud ge on this
date, Honorable Gary Gerbitz, found that the issues alleged "were waived by the plea of guilty and
do not rise to a cons titutional level." In this pe tition, the appe llant alleged th at the Ha mble n Cou nty
general sessions judge, Criminal Court judges, the Criminal Court clerk’s office, members of the
district attorney general’s office and num erous criminal defense lawyers “cons pired” to deprive
him of his constitutional rights.

                                                      3
       Following the appellant's failed scheduled appearance, the post-conviction

court entered the following order:

       [U]pon the docket call the petitioner, Frank Pease, has failed to appear
       on June 16, 1997 and further that every Judge who has presided over
       these cases have had complaints filed against them before the Court
       of the Judiciary, and that every attorney who has been appointed to
       represent him has been alleged to be incompetent and ineffective, that
       this petitioner desires to harass the entire Judicial System of
       Tennessee, these cases are dismissed upon Mr. Pease’s failure to
       appear.

Pursuant to the order, the court mailed a copy of the order to the appellant. To

explain his absence, the appellant claims that he was “inadvertently incarcerated” in

the state of Connecticut beginning on June 5, 1997, for eighty-three days until he

was released on bond. On October 3, 1997, the appellant filed a “motion to set

aside ruling” which was overruled by the post-conviction court because “the time for

appeal has passed.” Thereafter, the appellant filed his notice of appeal on

November 7, 1997.



       Although the appellant raises numerous issues within his brief addressing the

merits of his petition, the only issue properly before this court is whether the post-

conviction court erred by dismissing the appellant’s petition for post-conviction relief.



       First, as the State argues, the post-conviction court acted properly because

the motion to set aside the court’s ruling was filed over one hundred days after the

judgment of the court was entered on June 16, 1997. Therefore, the State contends

that the trial court had lost its jurisdiction to set aside the judgment it had earlier

entered. We agree. Unless a timely notice of appeal or one of the specified post-

trial motions are filed, the trial court’s judgment becomes final thirty days following

its entry. State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992); Tenn. R.

App. P. 4(a) and (c). The trial court loses jurisdiction to amend the judgment after it

has become final. Lock, 839 S.W.2d at 440; State v. Moore, 814 S.W.2d 381

(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991). Thus, because the

motion to set aside the court’s ruling was untimely, the requisite time to file his

                                           4
notice of appeal was not tolled.



       Moreover, the appellant filed his notice of appeal over one hundred thirty

days after the order dismissing the appellant’s petition was entered. The rules of

appellate procedure require that a notice of appeal be filed within thirty days after

the entry of the judgment from which the defendant is appealing. Tenn. R. App. P.

4(a). However, the State acknowledges that this court may waive the timely filing of

a notice of appeal “in the interest of justice.” State v. Scales, 767 S.W.2d 157

(Tenn. 1989); see also Tenn. R. App. P. 3(e) and 4(a). The appellant in this case

has failed to demonstrate to this court that the “interest of justice” demands such

waiver.



       If this court did waive the time requirements for this appeal, the result would

remain the same. The record before us, as previously stated, is wholly inadequate.

If the appellate record is inadequate, the reviewing court must presume that the trial

court ruled correctly. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App.

1993). The appellant’s brief contains no arguments requiring a reversal of the post-

conviction court’s dismissal of his petition. Those issues unsupported by argument

and citation to legal authority are waived. Tenn. Ct. Crim. App. R. 10(b). The

appellant’s brief states that he was “unfortunately incarcerated in the State of

Connecticut pending the procurement of a $50,000 surety bond, and could not have

attended the hearing to which he was not aware.” The record lacks any scintilla of

evidence of the appellant’s incarceration except for the “motion to set aside ruling”

where he asserts he was “inadvertently incarcerated” in which he provides the

address of the Hartford Community Correctional Center. Had the appellant been

truthful regarding his absence from the hearing, the post-conviction court could have

made other arrangements. See Tenn. Code Ann. § 40-30-210; Tenn. Sup. Ct. Rule

28 § 8(C)(1)(a)-(c). Even if the appellant’s incarceration were taken as the truth

upon this appeal, the post-conviction court was without the knowledge of this fact at


                                         5
the time of its ruling and was not aware until after its judgment became final.



       Therefore, we conclude that the judgment of the post-conviction court is

affirmed, and the petition for post-conviction relief is dismissed with prejudice.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:



__________________________________
JERRY L. SMITH, Judge



__________________________________
JAMES CURWOOD WITT, JR., Judge




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