          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                               AT KNOXVILLE
                                                               October 5, 1999

                           AUGUST 1999 SESSION                Cecil Crowson, Jr.
                                                             Appellate Court Clerk




STATE OF TENNESSEE,             *    C.C.A. # 03C01-9810-CR-00373

             Appellee,          *    CAMPBELL COUNTY

VS.                             *    Honorable Lee Asbury, Judge

JOHNNY LEACH.                   *    (Aggravated Sexual Battery--Two
                                     Counts)
             Appellant.         *



FOR THE APPELLANT:                   FOR THE APPELLEE:

ANTHONY M. AVERY                     PAUL G. SUMMERS
607 Market Street, 8th Floor         Attorney General & Reporter
Knoxville, TN 37902
                                     MICHAEL J. FAHEY, II
                                     Assistant Attorney General
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     WILLIAM PAUL PHILLIPS
                                     District Attorney General

                                     MICHAEL OLIN RIPLEY
                                     Assistant District Attorney
                                     P. O. Box 323
                                     Jonesboro, TN 37757




OPINION FILED: _______________




AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

      The defendant, Johnny Leach, appeals the order of the Criminal Court of

Campbell County denying his request to withdraw his guilty plea to two counts of

aggravated sexual battery. On July 2, 1998, the defendant entered his plea and

received two ten-year sentences to be served concurrently. Because the

defendant’s plea became final on the date of entry of the plea pursuant to the

plea agreement, we conclude that his motion to withdraw was untimely.

Accordingly, we AFFIRM the judgment of the trial court.



                            PROCEDURAL HISTORY

      Pursuant to a plea agreement on July 2, 1998, the defendant entered a

guilty plea to two counts of aggravated sexual battery and received two ten-year

sentences to be served concurrently. In the defendant’s petition for acceptance

of this plea, the defendant specifically waived his right to appeal any non-

jurisdictional defects. The trial court sentenced the defendant on the date the

plea was entered.



       On July 21, 1998, the defendant filed a motion to withdraw his guilty plea,

pursuant to Tenn. R. Crim. P. 32(f), alleging that withdrawal was necessary to

avoid “manifest injustice.” On August 21, 1998, the trial court conducted an

evidentiary hearing and, finding no basis for “manifest injustice,” denied

defendant’s motion by written order on September 8, 1998. This appeal

followed.

                                     Analysis

                Untimely Filing of Motion to Withdraw Guilty Plea

       The withdrawal of a guilty plea is specifically controlled by Tenn. R. Crim.

P. 32(f), which provides:


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              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.


       Thus, while the Tennessee rule provides for both withdrawal prior to

sentencing and withdrawal after sentencing but before final judgment, it does not

authorize withdrawal after final judgment. See State v. Hall, 983 S.W. 2d 710,

711 (Tenn. Crim. App. 1998).



       In this case, when the defendant pled guilty and waived his right to

appeal, the judgment became final that same day when his sentence was

imposed. See id. at 711; Passarella v. State, 891 S.W. 2d 619, 624 (Tenn.

Crim. App. 1994); Warren v. State, 833 S.W. 2d 101, 102 (Tenn. Crim. App.

1992); see also Lakeith O. Lightfoot v. State, No. 02C01-9703-CR-00129 (Tenn.

Crim. App. filed February 18, 1998, at Jackson). Further, we note that generally

no right of appeal exists from a guilty plea entered pursuant to a plea agreement,

see Tenn. R. Crim. P. 37(b), and that the exceptions set forth in Tenn. R. Crim.

P. 37(b)(2)(I)-(iv) are inapplicable in this case. Therefore, the plea of guilty,

waiver of appeal and sentence, all entered July 2, 1998, made judgment final

that day. See Hall, 983 S.W. 2d at 711. For this reason, we conclude that the

defendant’s motion to withdraw his guilty plea was untimely.



                                  Manifest Injustice

       Reviewing the merits of the defendant’s motion to withdraw, we likewise

affirm the trial court’s denial. The decision to grant a motion to withdraw rests in

the sound discretion of the trial court and is therefore not subject to reversal

absent a clear abuse of discretion. See State v. Drake, 720 S.W.2d 798, 799

(Tenn. Crim. App. 1986). Applying this standard, we find that the defendant has

failed to met his burden of establishing that the plea of guilty should be


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withdrawn to prevent “manifest injustice,” see State v. Turner, 919 S.W.2d 346,

355 (Tenn. Crim. App. 1995), and that the trial court did not abuse its discretion.



       The trial court held an evidentiary hearing on August 21, 1988, in

consideration of the defendant’s motion and made the following findings:

       (1) The defendant has failed to meet the required burden of proof,
           failing to establish that the guilty plea should be withdrawn to
           prevent manifest injustice.
       (2) The defendant failed to establish that his “best interest” plea of
           guilty was entered due to coercion, fraud, duress, or mistake,
           fear, gross misrepresentation by the State, any withholding of
           material exculpatory evidence by the State which influenced the
           entry of the plea.
       (3) The defendant’s original guilty plea was voluntary,
            understandingly and knowingly entered, with the assistance of
            competent counsel.
       (4) The defendant utterly failed to establish any proof whatsoever
            that the State of Tennessee misrepresented any matter to the
            defendant, or in any way withheld material exculpatory
            evidence from the defendant.
       (5) The defendant’s relevant testimony in open court on August 21,
           1988 does not differ in any material respect from his testimony
           in the guilty plea hearing on July 2, 1998.


       Having reviewed the record, this Court finds no reason to disturb the

findings of the trial court. We agree with the trial court’s denial.



                                   CONCLUSION

       Accordingly, we affirm the decision of the trial court.




                                           ______________________________
                                           JOHN EVERETT W ILLIAMS, Judge

CONCUR:




_____________________________
JOSEPH M. TIPTON, Judge




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_____________________________
ALAN E. GLENN, Judge




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