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

                        APRIL 1999 SESSION               Cecil Crowson, Jr.
                                                        Appellate Court Clerk




JACQUES B. BENNETT,             *    C.C.A. 03C01-9809-CR-00338

      Appellant,                *    HAMILTON COUNTY

vs.                             *    Hon. Douglas A. Meyer, Judge

STATE OF TENNESSEE,             *    (Motion to Vacate/Set Aside
                                     Judgment/Plea)

      Appellee.                 *



For Appellant:                       For Appellee:

Jacques B. Bennett                   John Knox Walkup
STSRCF                               Attorney General and Reporter
Route 4, Box 600                     425 Fifth Avenue North
Pikeville, TN 37367                  Nashville, TN 37243-0493

                                     Ellen H. Pollack
                                     Assistant Attorney General
                                     Criminal Justice Division
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493




OPINION FILED:



AFFIRMED - RULE 20



NORMA MCGEE OGLE, JUDGE
                                               OPINION

                 The petitioner, Jacques B. Bennett, appeals the summary dismissal of

his “Motion to Vacate/Set Aside Judgment/Plea: and, to Declare Said

Judgment/Plea Void” by the Hamilton County Criminal Court on January 9, 1998.

Following a thorough review of the record, we conclude that this is an appropriate

case for affirmance pursuant to Ct. of Crim. App. Rule 20.



                 On November 9, 1992, the petitioner pled guilty in the Hamilton County

Criminal Court to first degree murder. According to the petitioner, he then filed a

motion to withdraw his guilty plea on December 13, 1992.1 The trial court denied the

petitioner’s motion and, on January 5, 1993, entered a judgment of conviction,

sentencing the petitioner to imprisonment for life. On July 6, 1993, the petitioner

filed a petition for post-conviction relief in which he raised the following grounds for

relief: (1) whether he voluntarily and knowingly entered his guilty plea; (2) whether

trial counsel rendered ineffective assistance; (3) whether the trial court erroneously

denied his motion to withdraw his guilty plea and his motion to vacate or set aside

the plea agreement; and (4) whether the trial court lacked jurisdiction to accept his

guilty plea. The trial court denied the petition, and this court affirmed the trial court’s

judgment. Bennett v. State, No. 03C01-9512-CR-00391, 1996 WL 492158 (Tenn.

Crim. App. at Knoxville, August 28, 1996), perm. to appeal denied, (Tenn. 1997).



                 On December 30, 1997, the petitioner filed the instant “motion,”

alleging that (1) trial counsel rendered ineffective assistance, (2) the trial court

erroneously denied his motion to withdraw his guilty plea, and (3) he was not

present when the trial court sentenced him to imprisonment for life. The trial court



        1
         In his brief, the petitioner states that he also filed motions to withdraw his guilty plea on May
19, 1993 , and on N ovem ber 3, 19 94, both o f which m otions we re denied by the trial cour t.

                                                     2
treated the petitioner’s motion as a petition to reopen his prior petition for post-

conviction relief and declined to afford relief. The trial court based its denial of relief

upon this court’s prior determination of the petitioner’s allegations and additionally

concluded that the petition is time-barred. On appeal, the petitioner disputes the

trial court’s findings and additionally alleges that the trial court violated the federal

and state constitutions and Tenn. R. Crim. P. 43 and 44 by sentencing him to

imprisonment for life in his absence and in the absence of his attorney.



              Initially, we note that the trial court properly treated the petitioner’s

“motion” as a petition to reopen his prior petition for post-conviction relief. A trial

court is not bound by the title of a pleading but has discretion to treat the pleading

according to the relief sought. Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn.

1995); Caruthers v. State, No. 02C01-9806-CC-00162, 1999 WL 55938, at *2

(Tenn. Crim. App. at Jackson, February 9, 1999). The petitioner’s judgment of

conviction having long since become final, post-conviction proceedings constituted

the petitioner’s sole remaining avenue of relief in the Hamilton County Criminal

Court. See Newsome v. State, 995 S.W.2d 129, 133-134 (Tenn. Crim. App. 1998),

perm. to appeal denied, (Tenn. 1999); State v. Lyons, No. 01C01-9508-CR-00263,

1997 WL 469501, at *5 (Tenn. Crim. App. at Nashville, August 15, 1997). Yet, the

petitioner had previously filed a petition for post-conviction relief which was resolved

on the merits by the trial court and by this court on appeal. As the State correctly

notes, the 1995 Post-Conviction Procedure Act provides:

              This part contemplates the filing of only one (1) petition
              for post-conviction relief. In no event may more than one
              (1) petition for post-conviction relief be filed attacking a
              single judgment. If a prior petition has been filed which
              was resolved on the merits by a court of competent
              jurisdiction, any second or subsequent petition shall be
              summarily dismissed. A petitioner may move to reopen a
              post-conviction proceeding that has been concluded,
              under the limited circumstances set out in Tenn. Code.
              Ann. § 40-30-217.

                                             3
Tenn. Code. Ann. § 40-30-202(c) (1997). We conclude that none of the limited

circumstances set out in Tenn. Code. Ann. § 40-30-217 (1997) are applicable in this

case. Accordingly, we affirm the judgment of the trial court pursuant to Ct. of Crim.

App. Rule 20.




                                                       Norma McGee Ogle, Judge


CONCUR:




Jerry L. Smith, Judge




Joe G. Riley, Judge




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