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State v. Duncan8/31/1999
The defendant pled guilty to three counts of possession of a controlled substance with the intent to deliver. The defendant's subsequent motion to withdraw his guilty plea was denied by the trial court. The defendant received an effective sentence of three years with a term of sixty days to be served in the county jail and the balance to be served in community corrections. The defendant now appeals and presents the following issues for our review:
1. Whether the trial court erred by refusing to set aside the defendant'sguilty plea;
2. Whether the trial court erred in not granting the defendant permissionto certify questions of law to this Court; and
3. Whether the trial court erred in sentencing the defendant to serve sixty days in jail in addition to a term in community corrections.
On November 18, 1997, the defendant pled guilty and was sentenced in accordance with his plea agreement. At that point, the only issue not agreed upon in the plea agreement was the issue of split confinement. Before a hearing could be held with regard to split confinement, the defendant filed a motion to withdraw his guilty plea. On March 16, 1998, the trial court, after a hearing, denied the defendant's motion to withdraw his guilty plea. On July 6, 1998, the trial court held a hearing to determine whether any part of the defendant's agreed upon sentence would be served in jail. At this hearing, the defendant asked the trial court to certify questions of law with regard to suppression of evidence and double jeopardy to this Court. The trial court did not address this issue. The trial court then ordered the defendant to spend sixty days of his three year sentence in jail with the balance to be served in community corrections.
The defendant first contends that the trial court erred in refusing to allow him to withdraw his guilty plea. A defendant who submits a guilty plea is not entitled to withdraw the plea as a matter of right. State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995) (citing State v. Anderson, 645 S.W.2d 251, 253-54 (Tenn. Crim. App. 1982)). The decision to allow the withdrawal of a guilty plea rests within the sound discretion of the trial court and is not subject to reversal except where it clearly appears that there was an abuse of discretion. Id. The record must contain some substantial evidence to support the trial court's decision. Goosby v. State, 917 S.W.2d 700, 705 (Tenn. Crim. App. 1995).
According to the Tennessee Rules of Criminal Procedure, a trial court may permit the withdrawal of a guilty plea upon a showing by the defendant of "any fair and just reason . . . before sentence is imposed." Tenn. R. Crim. P. 32(f). However, after the defendant is sentenced but before the judgment becomes final, a trial court may permit the withdrawal of the defendant's guilty plea only to correct manifest inJustice. Tenn. R. Crim. P. 32(f).
In his appellate brief, the defendant argues that "he thought his motions would be preserved when he made his guilty plea. He just did not realize he would be giving up his rights unless the issues [of suppression of evidence and double jeopardy] were certified. . . . e was never made aware that he was losing his rights in regard to an appeal of these issues." The defendant claims that based on the foregoing, "it was an abuse of discretion not to set aside his guilty plea. He did not have full knowledge and was mistaken as to what would happen to his appeal."
However, the record contains the "Waiver of Trial by Jury and Request for Acceptance of Plea of Guilty" which clearly states that by pleading guilty, [the defendant is] waiving or giving up right to appeal al
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