### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs S eptem

ber 9, 2003
RICKY LYNN F RAZIER v. STATE OF TENN ESSEE Appeal from the Criminal Court for Chester County No. 03-4422 Roy B. Morgan, Jr., Judge

No. W2003-01380-CCA-R3-PC - F iled December 19, 2003

The petitioner, Ricky L

ynn Frazier , appea

ls the trial court's dismissal of his post-conviction petition. In this appeal, he argues that the Depar tment of Correction has failed to proper ly a pply the jail credits he earned prior to the entry of his gui lty plea. Be caus e the proper avenue for revie w of the applicationof sentence reduction credits is the Administrative Procedures Act, the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the opinion of the court, in which J ERRY L. S MITH and J OE G. R ILEY , JJ., joined. Lloy d R. Tatum, Henderson, Tennessee, for the appellant, Ricky Ly nn Frazier.
Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney Ge neral; and Al Earls, Assistant District Attorney Ge neral, for the appellee, State of Tennesse e.
OPINION

In May of 2002, the pe

titioner entered a plea of guilty

to one count of

aggravated assa

ult and
one count of vandalism less than $500. The trial court imposed a Range I sentence of six year

s for aggravated

assault a nd a conc urrent s entence

of eleve n months, tw enty-nine da

ys f or vanda lism. The plea agreement provided that the petitioner would be granted credit for the

time he had served in the Madison County Jail prior to the entry of his plea. In January

of 2 003, th e petitioner filed this petition for po st-co nvict ion re lief a llegi ng, among other things, that he had been denied the pretrial jail cre dits to whic

h he was e

ntitled pur

suant to th e plea a

greem ent.
At the evide ntiary hearing , it

was established

that the p etitioner

and the st ate had e ntered i nto an agreement whereby

the petition would be dismissed if the trial court would en ter an orde r directing the Department of Correction to apply 192 days of pr

e trial jail credit to th e peti tion er's sentence. The trial court, explaining that it did not have jurisdiction to enter such an order be cause-2-

the Administrative P r ocedures Act was the appropriate a venue for relief, held that the application of pretrial jail credits was not a cognizable claim for post-c onvict ion relief an d dismissed the petition.
Alth ough the petitioner claimed in his original petition for post-conviction relief and in this appeal that the failure of the department to apply his jail credits rendered

his guilty pl ea in vo lu nt ar y, he did not so contend

at the evidentiary

hearing. I

n fact, the petitioner abandoned all of his original grounds for post-conviction relief at the evidentiar y hearing and even sought dismissal of the petition.
There are sev eral re asons tha t this cour

t sh ould n ot grant relief on appeal. I nitially, a defendant may not assert

one ground for relief in the trial court a nd then pursue a new or different theory on appeal. See State v. Adkisson , 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994). Se co nd ly, the petitioner has failed to include

either th e transc

ript of the guilty plea or the judgment forms in the re cord. I

t is the duty

of the ac cused to p

rovide a record which co nvey s a fair, accura te and complete account of what transpired with regard to the issues whi ch form th e basis of the appe al. Tenn. R. App. P. 24 (b); see State v. Taylor , 99 2 S.W.2d 941 , 944 (Tenn. 1999). In conseque nce, waiver would apply. Finally

, the state correctly

asserts that

the Uniform

Administrative Procedures Act, see Tenn. Code Ann. §§ 4-5-101 to -325, is the appropriate avenue of re lief on this issue. See Carroll v. Raney , 868 S.W.2d 721, 723 (T enn. Crim. App. 1993 ); see also John Haws Burrell v. Howard Carlton, Warden , No. E2002-01613-CCA-R3-PC (Tenn. Crim. App., at Knoxville, Oct. 17, 2003); Robert J. Cole v. Glenn Turner , No. W2002- 02421-CCA -R3-CO (T enn. Cr im. App., at Jackson, June 18, 2003); James A. Vaughn v. State , No. 01C01-9308-CR-00258 (Tenn. Crim. App., at Nashville, Feb. 24, 1994).
While two opinions of this court, State v. Christopher Oliver , No. 03C01-9212-CR-00447 (Tenn. Crim. App., at Knoxville, May 11, 1993), and Matthew P. Finlawv. Anderso n County Jail , No. 03C01-9212-CR-00448 (Tenn. Crim. App., at Knoxville, Aug. 13, 1993), appe ar toauth orize trial courts to grant the relief sought by the petitioner in this case, they do not mandate the grant of relief. In Vaughn , this court ruled that it was not error for the trial court to refuse to grant such an order when the state, as in this case, questioned the jurisdiction of the trial court to enter

the order. Vaughn , slip op. at 4. In Finlaw , this cour t conced ed that th e Depar

tment of Co rrection might r efuse to comply with a court orde r of this nature and warned that the petitioner would then have to "seek his remedy through the admi nistrati ve procedure." Finlaw , slip op. a t 5. It is our vie

w t hat under these ci rcumstan ces, the petitione r must see

k relief under the Administra

tive Proc edures A ct. Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE