# FILED May 12, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999
LARRY SNEED, ) C.C.A. NO. 01C01-9803- CC-00117 ) Appe llant, ) ) MAURY COUNTY V. ) ) ) HON. JIM T. HAMILTON, J UDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (POST- CONVICTI ON)

FOR THE APPELLANT : FOR THE APPELLEE : LARR Y SN EED , pro se JOHN KNOX WALKUP 919 Myers Avenue Attorney General& Reporter Columbia, TN 38401 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 T. MIC HAE L BOTTOMS Distri ct Attor ney General ROBERT C. SA NDERS Assistant Distri ct Attor ney General JESSE DURH AM Assistant Distri ct Attor ney General P.O. Box 1619 Columbia, TN 38401-1619
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petiti oner, Larr

y Sneed, appeals as

of right the tri al court’ s dismissal of his petiti on for post- convicti on relief . In thi s appeal, Pet itioner contests t he trial court’s order resci nding its decision t o expunge his record, and he cla im s that he
was unawa re of the na ture of th e charges agains t him wh en he e ntered h is guilty plea. After a carefu l review of the record, w e affirm the judgm ent of the tria l court.

On March 17, 1994, Pet itioner pled guil ty to 11 counts o f passing worthless checks, one co unt of theft, a nd one count of v an dalism .. Petition er sub sequ ently filed a post-convi ction pet ition c hallengi ng thatplea which t he trialcourt dis missed. Petiti oner appealed to thi s Court and a panel of the Court rejected t he majority of Petition er’s claims. See Snee d v. State , 942 S.W .2d 567 (Te nn. Crim. Ap p. 1996), per m. to appeal deni ed (Tenn. 199 7). Howeve r, this Court did remand the case so the trialcourt coul d enter wri tten fi ndings of fact and conclusi ons of law. Id . at 569. This Court was particularly intereste d in whether P etitioner understoo d the nature of the char ges ag ainst him
. Id
. On remand, Petiti oner informed the post-convi ction court tha t he had served hi s prison term and was no longer i ncarcerated and the court therefor

e found that theissues conc erning his plea w ere moo t. The trial court then issued an orderexpunging Peti tioner’ s record. The cour t subsequentl y decided thatit did not ha ve the authority to enter such an or der, and it

rescinded t he order and entere d an o rder in compliance with thi s Court’s r equest for f indings of

fact and
conc lusion s of law . Petition er time ly filed his notice of app eal.

I. Expungement-3- In his pri or appeal, t his Court r ejected all b ut one of Peti tioner’ s claims, and remanded the case on the onenarrow issue, stating :

The petiti oner also complai ns that the tri al court di d not state on the record o r set for th in i ts order i ts findi ngs of fact and conclusions

of law asrequired by T.C.A. § 40-3 0- 118(b) (1990 Repl.) (repealed 1995)

. While we acknowledge that th is failure ‘d oes n ot nec essa rily constitute revers ible erro r,’ Swanso n v. State , 749 S.W.2d 731, 736 fn. 3 (Tenn. 1988), it does po se a problem here because of the is sue c once rning th e petitio ner’s understandingof the natu re of the cha rges against him, as set forth above. Accordingly, we rever se t he judgment below with respec

t to thi s sole is sue a nd rem and th is matterto the c ourt belo w with instru ctions to e nter its written finding s of fact and conclusions

of law as required by statute. Either par

ty shallhave the ri ght to appeal as of right to this Cour t f rom t he findi ngs of the cour t below on the sole issue of wh ether the petitioner u ndersto od the nat u re of the charg es against hi m. As to all other iss ues raised in this appeal , the judg ment below is af firmed.
Sneed , 942 S.W.2d at 569-70.

At the hea ring on re mand , the post-c onviction c ourt learn ed that Petiti oner h ad served his sentence andwas n o long er inca rcerat ed. Afte r erron eous ly concluding thatthe issuebefore th e court w as mo ot due to Petiti oner’s rel ease, the cour t issued
an order expungi ng Petiti oner’s recor d on the charges at

issue in thi s appeal. The court subsequent ly resci nded that order and stated t he following: The Orderof Expungement of Febr uary 17, 1998 must b e set aside. T.C. A. 40- 32-101 does not provi de for the Expungement of records of convic tions th at have not been reversed and di smissed. The convi ctionsin these cases have not been reversed and dismisse d. The Post Convicti on Judgment was remanded to the t rial court fora ‘writ

ten order of

finding s of fact

and conclusions of law to be entere d.’ The Cour t did not find that ther e had been reversible error

in the guilt

y pleas and convictions. Therefore, the records of convic tions in the case nu mbers 7749, 7940 and 8165 are not to be expunged.-4- In this appeal , Petit ioner argues t hat the trial court erred in r escinding i ts order of expungement. Tennessee Code Annotated section 40-32 -101( a)(1) p rovide s in pertinent part that a trial cou rt may expunge the recor d “of a person who has been charged with a misdem eanor or a felon y, and which charge has been dismi ssed, or
a no true bill returned by a grand jury , or a ver dict of not guilty

returned by

a jury or
a conviction which has b y appeal been rev ersed . . . .” After concludi ng that Petition er’s convic tions d id not fa ll within a ny of the se pro visio n s, the court approp riately rescin ded its ord er of expu ngem ent.

Furtherm ore, the co urt had th e jurisdiction to rescind its erroneo us orde r. A trialcourt’s judgment becomes final thi rty days after its entry unl ess a timely notice of appeal or

spec ified po st-trial m otion is filed. See State v. Moore , 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991). The court generally

loses jurisdict ion to amend an orderonc e it

hasbec ome final. Id . In this case, the court en tered its expungement orderon February 17, 1998, and its order resci nding that order on March 6, 1998. There fore, the co urt had n ot yet lost jurisd iction. This issue is with out me rit.

II. Gui lty Pl ea

Petiti oner argues in t hi s iss ue tha t the po st-con viction c ourt er red in concluding that he unders tood the nature o f the charg es aga inst him. In compliance-5-

with this Court’s opi nion, the post-convi ct i on court made the following factual and legal fi ndings regardi ng this i ssue:

The record shows t hat the [Pet itioner ] was advised by t he Trial Court of the charges against him a nd the [Petitioner] acknowled ged th at he understoo d the charges. He was also advised of his right to a jury trial, tha t the State had to prove the charges beyo nd a reasonable doubt , that t he [Petitioner] did not ha ve to tes tify in the tr ial, that he could subpoena witnesses for his defe nse and could b e repre sente d by co unse l. The [Petitioner] w as repr esented by counselin his pl ea and plea nego ti ations and si gned a Petiti on to Plead Guilty, which was entered into the re cord, in which we re set ou t t he [Petit ioner’s]right[s] incl ud[ing] t hose cited above. The Petiti on contained the terms of the agreement and a statementthat the [Pe titioner] was offering his guilty plea freely, volunta rily, and of his o wn acc ount. It als o recited that his

attorney

had explainedthe matter to h im, and t hat he u nder

sto od t hem. The TrialCourt did not advi se the[Pe tit ioner] of the fact thatthe convic

tions th at he was agreein g to could be used to enhance punishment f or any convi ctions i n the futur e. B ased on the en tire record the Cou rt conclud ed th at th e [Petitioner] had freely, volunta rily, and knowingly entered his guilty

plea, and t hat there wer e no constit utional violati on[s] in the pro cee ding to form a basis for a Post Convicti on Relief. Ther efore under t he law the [Petit ioner’s]Petiti on should be and was deni ed.

We agree with the trial cou rt’s finding s, despite the fact that Peti tioner’ s written plea agreement was not made part of the recor

d on appeal . It appear s from the record and Petition er’s brie f, that the only conviction Petitioner s pecifically co ntests is the one he recei ved for t he offense of theft. At the fi rst post- convicti on hearing, the trialcourt asked Pet itioner what he did not

understand about

the chargesat his guilty plea heari ng and Pet itione r gave the following re spons e: “Your H onor, I pleaded guilty

to a charge and r

eceived a four

year sentence. I have absol utely no idea what tha t charge was for.” P eti tioner’ s indictm ent on that ch arge a lleged in-6-

relevant part that Pet itioner “did u nlawfully an d know ingly obtain property, to -wit: cash money, over the value ofOne Th ousand ($ 1,000.00) D ollars, of First Farme rs & Merchan ts Bank, John Cotham, agent, without hi s effect ive consent, with the i ntent to deprive the said First Farm ers & Merc hants B ank, Joh n Coth am, ag ent there of, in viol atio n of Tenn essee Cod e An n otated 39-14- 103 . . . .” At t he guilt y plea hearing, t he following coll oquy took place regarding t his charge:

The C ourt: In Case No. 7940, you’ re enteri ng a Plea o f Guilty to one (1) count of Theft: Class

D, because you are, in fact, guilty

of that of

fense? Petitioner: Yes, Sir.
Based on the foregoing, we fi nd that the proof is s uffici ent that Peti tioner did in fa ct under stand the char ges against hi m, specifi cally t he theft convicti on he contests. Fir

st of al l, theind ict ments i n th is cas e se t f ort h th e el eme nts ofthe offensesand the fact ual basis f or each charge. Secondly, Pet itioner admitted at

the guilty plea heari ng that he had discussed the charges with his atto rney and that he understood thecharges to whi ch he was pleading g uilty . Finally, Peti tioner stated to the tri al court t hat he was in fact guil ty of t he charges and that h e freely

and volunta rily chose to plead gui lty. We find that the r ec ord does no t prepon derate agains t the trial court’s findings. See McBe e v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). The factual f indingsof the trial court in hearing s are conclusive on appeal unless the evidence p reponderatesagainst th e judgm ent. See State v. Buford , 66 6 S. W.2d 4 73, 475 (Ten n. C ri m. App. 1983 ). This issue is without m erit.

Based on the fore going, w e affirm the judgm ent of the tria l court.-7- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ JERRY L. SMITH, Judge