         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                                 AT KNOXVILLE                   August 25, 1999

                                                               Cecil Crowson, Jr.
                            JUNE 1999 SESSION                 Appellate C ourt
                                                                  Clerk




STATE OF TENNESSEE,               *    C.C.A. # 03C01-9812-CR-00443

            Appellee,             *    HAMILTON COUNTY

VS.                               *    Honorable Douglas A. Meyer, Judge

GUILLERMO MATIAS JUAN,            *    (Motion To Correct Sentence/Denied)

            Appellant.            *



FOR THE APPELLANT:                     FOR THE APPELLEE:

GUILLERMO MATIAS JUAN                  PAUL G. SUMMERS
Pro Se Counsel                         Attorney General & Reporter
Southeastern Tennessee State
Regional Correctional Facility         MICHAEL J. FAHEY, II
Route 4, Box 600                       Assistant Attorney General
Pikeville, TN 37367-9243               425 Fifth Avenue North
                                       Nashville, TN 37243




OPINION FILED: _______________




AFFIRMED - RULE 20



JOHN EVERETT WILLIAMS,
Judge
                                     OPINION

       In 1997, the defendant, Guillermo Matias Juan, filed a pro se “Motion to

Correct Illegal Sentence” with the Hamilton County Circuit Court, and that court

dismissed the Motion. The petitioner had been indicted for premeditated and

deliberate murder, felony murder, aggravated burglary, and theft, and in 1991 he

pleaded guilty to second degree murder. The state dismissed the burglary and

theft charges. The trial court sentenced the petitioner to sixty years as a Range

III offender. After review of the record, we AFFIRM the trial court’s dismissing of

the motion, pursuant to Tennessee Court of Criminal Appeals Rule 20.



       The defendant, who allegedly did not understand English at the time of

the trial, asserted that “the transcript of the plea hearing reflects that [the

translator] was not qualified as an expert . . . in translating the English language

into [the petitioner’s native tongue].” The petitioner further asserted that “the trial

court did not administer an oath to [the interpreter] to tell the truth and to make

true translation to the petitioner.” Therefore, the defendant concludes, he

unknowingly waived Range I status and accepted Range III status. He argues

that his plea was not knowing and voluntary, thereby rendering his subsequent

sentence illegal.



       First, we note that this Court lacks jurisdiction to grant the requested relief,

because the defendant’s “Motion to Correct An Illegal Sentence” is not a proper

means of invoking our review. See Tenn. R. App. P. 3 (b). Also, the issue of a

knowing or voluntary guilty plea is cognizable only within a post-conviction

procedure, see Archer v. State, 851 S.W.2d 151 (Tenn. 1993), and the

applicable statute of limitations for that relief has expired, see Tenn. Code Ann. §

40-30-202.




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       The petitioner further alleges that the sentence was illegal because

second degree murder was not a lesser included offense of the indicted murder

charge. We note that the grand jury indicted him for felony murder or, in the

alternative, for “unlawfully, intentionally, deliberately and with premeditation”

killing the victim. The Code at that time defined one basis of first degree murder

as the intentional, premeditated, and deliberate killing of another. See Tenn.

Code Ann. § 39-13-202 (1991). Second degree murder was a lesser included

offense of that charge. See State v. Belser, 945 S.W.2d 776, 790 (Tenn. Crim.

App. 1996); State v. Henderson, 424 S.W. 2d 186, 188 (Tenn. 1968).



       Accordingly, the trial court’s denying the Motion is AFFIRMED, pursuant to

Tennessee Court of Criminal Appeals Rule 20.




                                           _____________________________
                                           JOHN EVERET T WILLIAMS, Judge


CONCUR:




______________________________
JOHN H. PEAY, Judge




_______________________________
DAVID G. HAYES, Judge




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