         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                         JANUARY SESSION, 1999          May 12, 1999

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
LARRY SNEED,                     )   C.C.A. NO. 01C01-9803-CC-00117
                                 )
           Appe llant,           )
                                 )   MAURY COUNTY
V.                               )
                                 )
                                 )   HON. JIM T. HAMILTON, JUDGE
STATE OF TE NNE SSE E,           )
                                 )
           Appellee.             )   (POST-CONVICTION)



FOR THE APPELLANT:                   FOR THE APPELLEE:

LARR Y SN EED , pro se               JOHN KNOX WALKUP
919 Myers Avenue                     Attorney General & Reporter
Columbia, TN 38401
                                     KAREN M. YACUZZO
                                     Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     T. MICHAEL BOTTOMS
                                     District Attorney General

                                     ROBERT C. SANDERS
                                     Assistant District Attorney General

                                     JESSE DURH AM
                                     Assistant District Attorney General
                                     P.O. Box 1619
                                     Columbia, TN 38401-1619



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Petitioner, Larry Sneed, appeals as of right the trial court’s dismissal of

his petition for post-conviction relief. In this appeal, Petitioner contests the trial

court’s order rescinding its decision to expunge his record, and he cla ims that he

was unawa re of the na ture of the charges agains t him wh en he e ntered h is guilty

plea. After a carefu l review of the record, w e affirm the judgm ent of the tria l court.



       On March 17, 1994, Petitioner pled guilty to 11 counts of passing worthless

checks, one co unt of theft, a nd one count of v andalism .. Petition er sub sequ ently

filed a post-conviction petition challenging that plea which the trial court dismissed.

Petitioner appealed to this Court and a panel of the Court rejected the majority of

Petition er’s claims.   See Snee d v. State, 942 S.W .2d 567 (Te nn. Crim. Ap p. 1996),

perm. to appeal denied (Tenn. 199 7). Howeve r, this Court did remand the case so

the trial court could enter written findings of fact and conclusions of law. Id. at 569.

This Court was particularly intereste d in whether P etitioner understoo d the nature

of the char ges ag ainst him . Id. On remand, Petitioner informed the post-conviction

court that he had served his prison term and was no longer incarcerated and the

court therefore found that the issues conc erning his plea w ere moo t. The trial court

then issued an order expunging Petitioner’s record. The court subsequently decided

that it did not have the authority to enter such an order, and it rescinded the order

and entere d an o rder in compliance with this Court’s request for findings of fact and

conc lusion s of law . Petition er time ly filed his notice of app eal.




                                     I. Expungement

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      In his prior appeal, this Court rejected all but one of Petitioner’s claims, and

remanded the case on the one narrow issue, stating:

             The petitioner also complains that the trial court did not
             state on the record or set forth in its order its findings of
             fact and conclusions of law as required by T.C.A. § 40-30-
             118(b) (1990 Repl.) (repealed 1995).                While we
             acknowledge that this failure ‘d oes n ot nec essa rily
             constitute revers ible erro r,’ Swanso n v. State, 749 S.W.2d
             731, 736 fn. 3 (Tenn. 1988), it does po se a problem here
             because of the is sue c once rning th e petitio ner’s
             understanding of the nature of the charges against him, as
             set forth above. Accordingly, we reverse the judgment
             below with respect to this sole issue a nd rem and th is
             matter to the court belo w with instru ctions to e nter its
             written findings of fact and conclusions of law as required
             by statute. Either party shall have the right to appeal as of
             right to this Court from the findings of the court below on
             the sole issue of wh ether the petitioner u ndersto od the
             nature of the charges against him. As to all other issues
             raised in this appeal, the judgment below is affirmed.


Sneed, 942 S.W.2d at 569-70.



      At the hea ring on re mand , the post-c onviction c ourt learn ed that Petitioner had

served his sentence and was n o long er inca rcerat ed. Afte r erron eous ly concluding

that the issue before th e court w as mo ot due to Petitioner’s release, the court issued

an order expunging Petitioner’s record on the charges at issue in this appeal. The

court subsequently rescinded that order and stated the following:

             The Order of Expungement of February 17, 1998 must be
             set aside. T.C.A. 40-32-101 does not provide for the
             Expungement of records of convictions that have not been
             reversed and dismissed. The convictions in these cases
             have not been reversed and dismissed.

             The Post Conviction Judgment was remanded to the trial
             court for a ‘written order of findings of fact and conclusions
             of law to be entere d.’ The Cour t did not find that there had
             been reversible error in the guilty pleas and convictions.

             Therefore, the records of convic tions in the case nu mbers
             7749, 7940 and 8165 are not to be expunged.

                                           -3-
       In this appeal, Petitioner argues that the trial court erred in rescinding its order

of expungement. Tennessee Code Annotated section 40-32 -101( a)(1) p rovide s in

pertinent part that a trial cou rt may expunge the record “of a person who has been

charged with a misdem eanor or a felon y, and which charge has been dismissed, or

a no true bill returned by a grand jury, or a verdict of not guilty returned by a jury or

a conviction which has by appeal been reversed . . . .”             After concluding that

Petition er’s convic tions d id not fa ll within a ny of the se pro visions, the court

approp riately rescin ded its ord er of expu ngem ent.



       Furtherm ore, the co urt had th e jurisdiction to rescind its erroneo us orde r. A

trial court’s judgment becomes final thirty days after its entry unless a timely notice

of appeal or spec ified po st-trial m otion is filed. See State v. Moore , 814 S.W.2d 381,

382 (Tenn. Crim. App. 1991). The court generally loses jurisdiction to amend an

order once it has become final. Id. In this case, the court entered its expungement

order on February 17, 1998, and its order rescinding that order on March 6, 1998.

There fore, the co urt had n ot yet lost jurisd iction. This issue is with out me rit.




                                      II. Guilty Plea



       Petitioner argues in this issue tha t the po st-con viction c ourt er red in

concluding that he unders tood the nature o f the charg es aga inst him. In compliance




                                             -4-
with this Court’s opinion, the post-conviction court made the following factual and

legal findings regarding this issue:

              The record shows that the [Petitioner] was advised by the
              Trial Court of the charges against him a nd the [Petitioner]
              acknowledged that he understood the charges. He was
              also advised of his right to a jury trial, tha t the State had to
              prove the charges beyond a reasonable doubt, that the
              [Petitioner] did not ha ve to tes tify in the tr ial, that he could
              subpoena witnesses for his defense and could be
              repre sente d by co unse l.

              The [Petitioner] w as represented by counsel in his plea
              and plea negotiations and signed a Petition to Plead
              Guilty, which was entered into the re cord, in which we re
              set out the [Petitioner’s] right[s] includ[ing] those cited
              above. The Petition contained the terms of the agreement
              and a statement that the [Pe titioner] was offering his guilty
              plea freely, volunta rily, and of his o wn acc ount. It also
              recited that his attorney had explained the matter to him,
              and that he understood them.

              The Trial Court did not advise the [Petitioner] of the fact
              that the convictions that he was agreein g to could be used
              to enhance punishment for any convictions in the future.

              Based on the en tire record the Cou rt conclud ed that the
              [Petitioner] had freely, volunta rily, and knowingly entered
              his guilty plea, and that there were no constitutional
              violation[s] in the proceeding to form a basis for a Post
              Conviction Relief.        Therefore under the law the
              [Petitioner’s] Petition should be and was denied.



       W e agree with the trial cou rt’s findings, despite the fact that Petitioner’s written

plea agreement was not made part of the record on appeal. It appears from the

record and Petition er’s brie f, that the only conviction Petitioner s pecifically co ntests

is the one he received for the offense of theft. At the first post-conviction hearing,

the trial court asked Petitioner what he did not understand about the charges at his

guilty plea hearing and Petitioner gave the following re spons e: “Your H onor, I

pleaded guilty to a charge and received a four year sentence. I have absolutely no

idea what tha t charge was for.” P etitioner’s indictm ent on that ch arge a lleged in

                                              -5-
relevant part that Petitioner “did u nlawfully an d know ingly obtain property, to -wit:

cash money, over the value of One Th ousand ($ 1,000.00) D ollars, of First Farme rs

& Merchants Bank, John Cotham, agent, without his effective consent, with the intent

to deprive the said First Farm ers & Merc hants B ank, Joh n Coth am, ag ent there of,

in violation of Tennessee Code Annotated 39-14-103 . . . .” At the guilty plea

hearing, the following colloquy took place regarding this charge:

              The C ourt: In Case No. 7940, you’re entering a Plea of
              Guilty to one (1) count of Theft: Class D, because you are,
              in fact, guilty of that offense?

              Petitioner: Yes, Sir.


        Based on the foregoing, we find that the proof is sufficient that Petitioner did

in fact understand the charges against him, specifically the theft conviction he

contests. First of all, the indictments in this case set forth the elements of the

offenses and the factual basis for each charge. Secondly, Petitioner admitted at the

guilty plea hearing that he had discussed the charges with his attorney and that he

understood the charges to which he was pleading guilty. Finally, Petitioner stated

to the trial court that he was in fact guilty of the charges and that he freely and

volunta rily chose to plead guilty. We find that the record does not prepon derate

agains t the trial court’s findings. See McBe e v. State, 655 S.W.2d

191, 195 (Tenn. Crim. App. 1983). The factual findings of the trial court in hearings

are conclusive on appeal unless the evidence preponderates against th e judgm ent.

See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983 ). This issue is

without m erit.



       Based on the fore going, w e affirm the judgm ent of the tria l court.




                                           -6-
                         ____________________________________
                         THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
JERRY L. SMITH, Judge




                               -7-
