                                                   FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE
                                                     April 30, 1999
                        JANUARY 1999 SESSION
                                                  Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk

PETE SMITH,                      )
                                 )
           Appellant,            )      C.C.A. No. 03C01-9805-CR-00182
                                 )
vs.                              )      Hamblen County
                                 )
STATE OF TENNESSEE,              )      Hon. James E. Beckner, Judge
                                 )
           Appellee.             )      (Motion to Withdraw Guilty Plea)



FOR THE APPELLANT:                      FOR THE APPELLEE:

PETE SMITH (pro se)                     JOHN KNOX WALKUP
P.O. Box 3000                           Attorney General & Reporter
Whitedeer, PA 17887
                                        ELLEN H. POLLACK
                                        Assistant Attorney General
                                        425 Fifth Ave. N., 2d Floor
                                        Nashville, TN 37243-0493

                                        C. BERKELEY BELL, JR.
                                        District Attorney General
                                        109 S. Main St., Suite 501
                                        Greeneville, TN 37243-0493

                                        JOHN F. DUGGER, JR.
                                        Assistant District Attorney
                                        510 Allison Street
                                        Morristown, TN 37814




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE




                              OPINION
                The appellant, Pete Smith, appeals from the Hamblen County Criminal

Court’s order dismissing his Motion for Withdrawal of Guilty Plea. On July 28, 1994,

the appellant pleaded guilty to two counts of sale and delivery of crack cocaine less

than a half gram, one count of aggravated assault, and one count of escape. The

judge sentenced him to an effective sentence of seven years in the Department of

Correction. On April 13, 1998, the appellant filed a Motion for Withdrawal of Guilty

Plea alleging (1) that he was ineffectively assisted by counsel due to the failure of

counsel to advise the appellant of his Fourth Amendment rights and (2) that his

guilty pleas were not entered knowingly and intelligently. The court below dismissed

the motion as untimely.        The appellant contends that the trial court erred in

dismissing his motion as time-barred because the time requirement for filing should

be waived under his unique circumstances. Following a review of the record and

the briefs of the parties, we affirm the trial court’s dismissal.



                A motion to withdraw a guilty plea can only be made before the

judgment is final. Tenn. R. Crim. P. 32(f).1 See generally State v. Antonio Demonte

Lyons, No. 01C01-9508-CR-00263 (Tenn. Crim. App., Nashville, Aug. 15, 1997).

Thereafter, a defendant may raise a constitutional challenge to his guilty plea in a

post-conviction proceeding.       Tenn. Code Ann. § 40-30-203 (1997); see also

Antonio Demonte Lyons, slip op. at 14. Although the appellant’s pleading contained



       1
           This rule states as follows:

                (f) Withdrawal of Plea of Guilty. -- A motion to
                withdraw a plea of guilty may be made upon a
                showing by the defendant of any fair 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 conviction and permit the defendant to
                withdraw the plea.

       Tenn. R. Crim. P. 32(f).


                                           2
the title of “Motion for Withdrawal of Guilty Plea,” “a trial court is not bound by the

title of the pleading, but has the discretion to treat the pleading according to the

relief sought.” Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995). Accordingly,

this court will treat the appellant’s Motion for Withdrawal of Guilty Plea as a petition

for post-conviction relief, as the parties and the court below have done.



              Under the Post-Conviction Procedure Act of 1995, petitions filed after

May 10, 1995, must be filed within one (1) year from the date of the final action of

the highest state appellate court to which an appeal is taken or, if there is no

appeal, within one (1) year of the date that the judgment became final. See Tenn.

Code Ann. § 40-30-202(a) (1997). However, the act gave petitioners, whose three

year statute of limitations under the previous act had not already expired, one year

from the effective date of the act, May 10, 1995, in which to file a petition for post-

conviction relief. See Tenn. Code Ann. § 40-30-201, Compiler’s Notes (1997). A

petition filed beyond the one year statute of limitations can only be considered if the

claim (1) is based upon a newly established constitutional right that was not

recognized at the time of trial, (2) is based upon new scientific evidence establishing

actual innocence of the petitioner, or (3) seeks relief from an enhanced sentence

because the previous conviction, which formed the basis of the enhancement, has

been held to be invalid. See Tenn. Code Ann. § 40-30-202(b) (1)-(3) (1997).



              The appellant’s motion to withdraw his guilty plea was untimely filed

on April 13, 1998. Upon entry of his guilty plea, including the waiver of his right to

appeal, the judgment became final that day, July 28, 1994. See State v. Roy Dale

McGriff, No. 01C01-9709-CR-00426 (Tenn. Crim. App., Nashville, Nov. 4, 1998);

Quentin L. Hall v. State, No. 02C01-9802-CR-00040 (Tenn. Crim. App., Jackson,

Aug. 28, 1998). The appellant needed to file his motion by May 10, 1996 in order

to be timely. See Tenn. Code Ann. § 40-30-201, Compiler’s Notes (1997).

                                           3
               However, the appellant contends that the statute of limitations should

not apply to his case because he was unaware of his Fourth Amendment rights

regarding the search of his motel room at the time of his guilty plea. This claim, the

appellant contends, falls within the exception for a newly established constitutional

right that was not recognized at the time of his plea.            The appellant has

misinterpreted the meaning of the exception for a newly established constitutional

right that was not recognized at the time of his plea. The claim must be “based

upon a final ruling of an appellate court establishing a constitutional right that was

not recognized as existing at the time of [the plea].” See Tenn. Code Ann. § 40-30-

202(b)(1) (1997). The appellant’s right to be free from an unreasonable search of

his motel room existed long before the search occurred. See, e.g., Johnson v.

United States, 333 U.S. 10,14 (1948); Stoner v. California, 376 U.S. 483, 486

(1964); Rippy v. State, 550 S.W.2d 636, 641 (Tenn. 1977); State v. Shaw, 603

S.W.2d 741, 742 (Tenn. Crim. App. 1980). The exception applies to claims of

constitutional rights newly established by “a final ruling of an appellate court,” not

to a claim that the appellant did not know this constitutional right existed at the time

of his plea.



               Because we find that the statute of limitations bars the appellant’s

claims, the judgment of the trial court is affirmed.




                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE


CONCUR:




_______________________________
GARY R. WADE, PRESIDING JUDGE

                                           4
_______________________________
JOHN K. BYERS, SPECIAL JUDGE




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