### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE May 2, 2001 Session STATE OF TENNESSEE v. CLIFFOR D PEELE Appeal by Permission

from the Court of

Criminal Appeals Circuit Court for Carter County No. 8027 Arden L. Hill, Judge

No. E1999-00907-SC-R11-CD - Filed October 16, 2001

We granted appeal to determine (1) if Tenn. R. App. P. 3(b) permits the ap peal of a deni al of a motion to withdraw a guilty plea; and (2) whether a Tenn. R. Crim. P. 32(f) motion to set aside a guilty plea filed prior to the time the judg ment becomes fina

l tolls the time for f

iling an appeal t

o permit the trial court to r

ule on the motion. We h

old (1) that a deni

al of a motion to set a

side a guilty plea may be appe

aled pursuant to T

enn. R. App. P. 3(b); and (2) that a trial court retains jurisdiction to rule on a motion to set aside a guilty plea if the motion is filed prior to the date the judgmen t becomes final. Accordingly, the holding of the Court of Criminal Appeals is reversed, and the case is remanded to the intermediate appellate court for proceedings consistent with this opinion. Tenn. R. App. P. 11 Appea l by Permission; Judgment of the Cour

t of Criminal Appeal

s Reversed.
J ANICE M. H OLDER , J., delivered the opinion of the court, in which F RANK F. D ROWOTA , III, CJ, and E. R ILEY A NDERSON , A DOLPHO A. B IRCH , J R ., and W ILLIAM M. B ARKER , JJ, joined. Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Clifford Peele.
Paul G. Summers, Attorney Generalan d Reporter; Michael E. Moore, Solicitor General; and Elizabeth B. Marney, Assistant Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS AND PROCEDURAL HISTORY
Clifford Peele (P eele ) pl ed gu ilt y on D ecem ber 6 , 19 82, to f irs t de gree mur der, bur glar y, grand larceny, and larceny. Approximately seven years later, on F ebruary 22 , 1990, Peele filed a motion to withdraw his gu ilty plea to th

e first d egree murd er charge because he had not been1 Upon entering his guilty plea, Pe ele was sente nced for the burglary,grand larce ny, and larc

eny. The sentenci ng for the first degree

murder convict

ion was postpone

d until Pe

ele tes tifi ed against

his co-def

endants. The extensive time period between Peele’s guilty plea and sente ncing is attrib utable to th e time ne cessary to c onclud e his multiple co-defendants’ trials and to conduct mental evaluati ons requested by Peele.
2 A period of

approx imately n ine years e lapsed fro m the filing of the seco nd mo tion to withdraw the guilty ple a to the time the order

denying the motion was entered. The trial court’s de

lay in rul

ing on the moti

on appears t

o have been caused by several m otions filed by Peele fo r substitution of coun sel and for continu ances. -2- sentenced for the crime. 1 On April 30, 1990, the trial court denied his motion to set aside the guilty plea andsentenced him to life imprisonment. The judgment was filed on May 22, 1990. No appeal was taken from the

judgment.
On June 21, 1990, Peele filed a second motion to withdraw his guilty plea based on alleged ineffectiveassistance of co unsel. The trial court concluded that Peele had timely filed his motion under Tenn. R. Crim. P. 32(f). Anorder entered by the trial court on May 19, 1999, denied Peele’s secondmotion to withdraw his guilty plea. 2 The Court of Criminal Appeals dismissed the appeal on June 20, 2000, on the grounds that Tenn. R. App. P. 3(b) does not allow an appeal of right from a denial of a motion to withdraw a guilty plea. The court also held that the trial court was without jurisdiction to rule on the motion after the judgment became final on June 21, 1990. Thereafter, Peele appealed the decision to this Court.
ANALYSIS

I. TENNESSEE RULE OF APPELLATE PROCEDURE 3(b)
On June 20, 2000, the Court of Criminal Appe als ruled thatthe trial court’s denial of a motion to withdraw a gu

ilty plea wa

s not subject to appe

al under Tenn. R. A

pp. P. 3(b). In State v. Wilson , decided on September 18, 2000, we stated that “[a] direct appeal then lies from a denial of a Rule 32(f) m otion.” 31 S.W.3d 18 9, 195 n.14 (Tenn. 2000 ) (citing State v. Newsome , 778 S.W.2d 34 (Tenn. 1989)). A

ccordingly

, Peele properly

appealed the de

nial of the motion to s

e t aside his guilty plea.
II. THE JURISDI CTION OF THE

TRIAL COU

RT
At issue in this case is the continued jurisdiction of the trial court to rule on Peele’s motion to withdraw his guilty plea. Resolution of this issue requires an analy sis of t he int erplay between Tenn. R. Crim. P. 32(f) and Tenn. R. App. P. 4(c). With that inte rplay in mind

, we turn first to

an analysis of Tenn. R. Crim. P. 32(f).
Rule 32(f) of the Tenn essee Rules of Criminal Procedure allows a defendant who pleads guilty to file a motion to withdraw that plea. Rule 32(f) provides that3 The language of Tenn. R.Crim. P. 32(f) provi des that a defend ant may attem pt to withdraw a guilty plea at two independ ent points in time . The first por ti on of Rule 32(f) allo ws a motion to be filed prior to sentencing.The second part of t

he rule a llows s uch a moti

on to be filed

after sentencing but before the j udgment becomes final. Although Peele filed both types of Rule 3 2(f) motions in t his case, t

his appeal concerns

only the second motion, which was filed after sentencing. -3- [a] motion to withdraw a

guilty plea may be made upon a showing by

the defendant of any fair

and just reason on

ly before s

entence is impose

d; but to correct mani

fest inju stic e, 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) ( 2000) (emphasis added). 3 A trial court’s jud gment as a gen

eral rule becomes final thirty

days after its entry unless a timely notice of appeal or specified post-trial motion is filed. State v. Pendergras s , 937 S.W.2d 834, 837 (Tenn. 1996). After the trial court loses jurisdi ction, genera lly it retains no power to amend a judgment. Id. (citing State v. Moore , 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991)). Judgments made outside the court’s jurisdiction are void. Id. (citing Brown v. Brown , 281 S.W.2d 492, 497 (Tenn. 1955)).
The State mai ntains tha t th e tr ial cou rt’ s ju dgme nt b ecam e fi nal thi rty d ays af ter its ent ry, despite Peele’s Rule 32(f) motion filed onthe thirtieth day. The State, therefore, argues that the trial court lost jurisdictio

n to rule on Peele’s Rule 32(f) motion because the court did not rule on the motion before the

judgment became

final.
When construing statutes, the mention of one subje ct in a statute

excludes other subjects that are notmentioned. State v. Brewer , 989 S.W.2d 349, 355 n.4 (Tenn. Crim. App. 1997) (cit ing State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991)). Statutory segments, however,should be “construed together in light of the general purpose and plan . . . and object to be obtained.” Id. (quoting Neff v. Cherokee Ins. Co. , 704 S.W.2d 1, 3 (Tenn. 1986)). Furthermore, statutes should be construe d “so that no part w ill be i noperative, superfluous, void or insignificant . . . and to give effect to every word, phrase, clause and sentence of the act in order to carry out the legislative intent.” Id. (quoting Tidwell v. Collins , 522 S.W.2d 674, 676-77 (Tenn. 1975)). Such statutory c onstruction is appl

icable in construing rules governing practice and procedure of the court. See , e.g , id. (applying statutory construction to interpret Tenn. R. Crim. P. 41(c)). Reading Rule 32(f) to divest the trial court of jurisdiction to rule on a motion filed before the judgment bec omes final w ould limit the effectiveness of the post-sentence portion of Rule 32(f). The language of Rule 32(f) clearly state s that the trial court

may hear a

motion towithdraw a guilt y plea after sentence, but before the judgment becomes final. The rule is silent, however, as to whether such a motion stays the

judgment until the

trial court rules

on the motion. The pu

rpose of Rule 32(f) is to provide a defendant

with a procedure

to withdraw a gu

ilty plea. I

nterpreting Rule

32(f) to limit the trial court’s ability to decide such a motion would defeat the very purpose for

which the rule was intended.4 Subsection Rule 32(f)(1) is a typographical error. The rule concern ing suspe nded se ntences is found in Tenn. R. Crim . P. 32(a). R ule 32 d oes not co ntain a sub section 32 (f)(1). -4- If we wereto hold that the tria l court loses jurisd

iction to rule on the timely-filed Rule 32(f) motion, a moving party would be placed in one of two untenable positions. The moving party would be forced to choose whether to (1) await the trial court’s ruling on the Rule 32(f) motion and chance that the trial judge will not rule on the motion before the judgment becomes final; or

(2) before the judgment becomes f

inal, file an appeal under

Tenn. R. App. P. 3(b) of the trial court’s anticipated denial of the Rule 32(f) motion. A defendant who chooses the first option risks the possibility that the trial court will fail to r ule on the motion. Once

the judgment beca

me final and the tr

ial court lost jurisdiction, a defendant would have forfeited his right to appeal a denial of the Rule 32(f) motion. The second option of an appeal before a trial court ruling presents a similar pitfall. When an appeal is filed, the trial court loses jurisdi ction, and the juri

sdiction of the Cour

t of Criminal Appea

ls attaches. Pendergrass , 937 S.W.2d at 837 (Tenn. 1996) (citing Statev. Peak , 823 S.W.2d 228, 229 (Tenn. Crim. App. 1991)). By prematurely appealing, thedefendant would l ose the opportunity

to have the trial court rule, perhaps favorably, on his motion. Neither opt ion p rovides a defen

dant a meaningful opportunity for relief under Rule 3 2(f). Procedural rule s should not be applie

d to preclude their practical application.
The second part of

the analysis conc

erns Tenn. R. App.

P. 4(c). Rule 4(c) directly addresses the issue of tolli

ng. Th e rule specifies certain post-trial motions or petitions that toll the time for filing a notice of a

ppeal:
In a criminal action if a timely moti on or petition under the Tennessee Rules of Criminal Procedure is filed in the trial court by the defendant

: (1) under Rule 29(c) for a judgment of acquittal, (2) under Rule 33 (a) for a new trial, (3) under Rule 34 for arrest of judgment, or (4) under Rule 32(f)(1) 4 for a suspended sentence, the time for ap peal for all parties shall run from entry of the order denying a new trial or granting or denying any other such motion or petition.
Tenn. R. App. P. 4(c) (2000). A motion to withdraw a guilty plea is not one of the specified motions or petitions. Howeve

r, Rule 4(c) does not specifically exclude from tolling properly filed motions or petitions not otherwise enumerated in the rule.
The Advisory Commission Comments to Rule 4(c) state that “unless these motions are aboli shed, it would be undesir able to proceed

with the appeal wh

ile the trial cour

t has before it a motion the granting of which would vacate or alter the judgment appealed from, and which might affect . . . the decision to

seek appellate r

eview.” Although

a motion to withdraw

a guilty plea is not one of the enumerated motions or petitions listed in Rule 4(c), the granting of such a motion would vacate the judgment. Had the trial cour t determined that Pe

elewas entitled to with

draw his guilty plea, the judgment

sentencing him would have been vacated. Peele would have been entitled to a jury trial on the first degree murder charge, and he would have had no need to appeal the conviction-5-

andsentence. Allowi

ng Peele to await

a ruling on the motion to withdraw his guilty plea before instituting an appeal from his conviction, therefore, would further the stated purpose of Rule 4(c). Conversely, reading Rule 4(c) and Rule 32(f) to allow the trial court’s judgment to become final before a ruling is made on a timely-filed Rule 32(f) motion effectively grants the trial court a “pocket veto.” The trial c

ourt would

have complete discretion to rule on the motion or to allow the time to run until the judgme nt became final. By waiting in good faith for a ruling that is never made, the defendant would lose the opportunity to appeal. Therefore, common sense dictates that the timelyfiling of a Rule 32( f) motion should st

ay t he judgment of the t

rial court until the

motion is decided.
Accord ingly, we hold that Tenn. R. App. P. 4(c) and Tenn. R. Crim. P. 32(f) vest the t ria l court with jurisdiction to decide a timely-filedRule 32(f) motion. In this case the judgment of the trial court was entered on May 22, 1990, and the judgmen t would hav e become final on June 21, 1990, thirty days after its entry. Peele’s second motion to withdraw th

e guilty plea for f

irst degree murder was filed on June 21, 1990. The filing of the motion therefore stayed the judgment until the trial court ruled on the motion to set aside the guilty plea.
CONCLUSION
A Tenn. R. App. P. 3(b) direct appeal lies from a trial court’s denial of a motion to withdraw a guilty plea raised

under Tenn. R. Crim

. P. 32(f). Upon the trial cou rt’s denial of the

motion to withdraw his guilty p lea, the defendant was entitled to appellate review of the decision. We thereforeoverrule

the Court of Criminal Appeals’ holding that a direct appeal does not arise from such a denial.
The trial court correctly exercised its jurisdiction under Tenn. R. Crim

. P. 32(f) to rule on the motion to set aside the guilty plea. Although a judgment genera lly becomes final t

hirty days after its entry, the motion filed on June 21, 1990, stayed the judgment of the trial court, which would have otherwise been final on that day. We therefore overrule the Court of Criminal Appeals’ holding that the trial court lacke

d jurisdiction to rul

e on the motion. The

case is remande

d to th e Cou rt of Criminal Appeals for proceedings consistent with this opinion. Costs are assessed to the State for which execution may issue if necessary.

___________________________________ JANICE M. HOLDER, J USTICE