# FILED
March 2, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUARY 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9801-CR-00006 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, WILLIE ANDREW COLE, ) JUDGE ) Appellant. ) (Expunction)

FOR THE APPE LLANT: FOR THE APPELLEE: WILLIE ANDREW COLE JOHN KNOX WALKUP R.M.S.I. Unit 6-B Attorney General & Repor ter 7475 Cockrill Bend Ind. Rd

. Nashville, TN 37209-1010 ELIZABETH B . MARNEY Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The petitioner filed several petitions in Davidson

County for

expunction of public records. Each petition addressed a separate charge for which the petitioner was acquitted, for which no true bill was returned, or that w as dismissed prior to tr

ial. By order dated November 18, 1997, the trial court denied each of the petitioner’s pe titions, statin g, “After diligent search the

C lerk of the Criminal Cour t is unable to locate any charges which can be identified as the war rants set out in the petition s. The [case] numbers set out in the petitions are alien to any system used by tha t office.” Th e petitioner now appeals to this Court.

First, the petitioner argues that the trial court’s orde r should be reversed and this case remanded for expunction bec ause the trial court had no discr etion to deny

his petitions. The petitioner correctly argues that expunction o f records pursuantto a proper petition is not amatter of discretion. State v. Liddle , 929 S.W.2d 415 (Tenn. Crim. App. 1996); see T.C.A. § 40-32-101(a). The ord er on review, how ever, reflects th at the trial court did notdeny the petitioner’s petition as a matter of discretion. Rather, the trial court denied the petitioner’s petitions because the records

relating to the charg es to which the petitioner

referred could not be found. If the reco rds cannot be found, they cannot be expunged. The p etitioner notes in his appellate bri ef that he referred to the files he wanted expunged by the numbers h e found on an FBI “rap sheet” found in his prison file. Apparen tly, these numbers do not correlate with the numbering system used by Davidson County. If the petitioner wants the public records relati ng to certain charges expunged, then he should refile a petition listing the case numbers used by the clerk of the criminal court and any other information that w ill help the clerk loc

ate the files he wishes to be expunged.3 As a corollary matter, the petitioner notes in his appellate brief that the full record was not

transmitted to this Court. Specifical ly, the petitioner compl ains that four of the five petitions he filed do not appear in the record on appeal. Because of this, the petitioner

requests that the clerk’s office be ordered to submit the ent ire appellate record to this Court so that we may properly consi der all issues presented. Given the nature of the trial court’s order, this is not necessary. Even if all five petitions were included in the appellate record, the petitioner i s not entitled to expunction of documents that cannot be located because the information the petitio ner supplied was insufficient to locate the documents to which he referred. Thus , even as suming the appellate record is in fact incomplete, it does not precl ude our full and meaningful rev iew of this case.

The petitioner also contends on ap peal that he “should receive a full refund of the court costs which he has endured.” According to the petitioner, the clerk repeatedly returned his petitions to him unfiled, so he filed a petition for writ of mandamus on October 10, 1997, to compel the clerk to file his petiti ons. The petitioner also claims that on November 17, 1997, he filed a pe tition with the Tennessee Supr eme Court for the appointmentof special counsel to rule on his petitions. He claims that filing this petition cost him one hundre d fifty-two dollars and seventy-five cents ($152.75). The record reflects that one day later, on Nov ember 18, 1997, the trial court entered an order denying his petitions. The petitioner claims he should be reimbursed f or the cost of filing a petition with the Tennessee Supreme Court because un der T.C.A. § 40-32-101(a), th e per son reque sting expunction shall not be charged for the cost of the ex punction and because, according to the petitio ner, the trial court and/or the clerk’ s office “intenti onally” failed to inform him that the trial court had denied his petitio n until August 25, 1998, when1 The petiti oner notes the trial court’s November 18, 1997, order r eflects that a copy of the order was sent to “W illie And ew C arter ,” not “ W illie And rew C ole,” w hich ma y expla in wh y he did not tim ely receive a copy

of the trial cour

t’s order , if that was in fact the case.

4 he received the appellate r ecord in this case. 1

Evidence to substantiate the petitioner ’s claims does not appe a r in the record. Becaus e this Court is not a fact-finding court, we decline to add ress any issue regarding reimbursement before it is properly presented to the trial cour t.

We affirm t he trial court’s order denying the petitioner ’s petitions for expunction. The petitioner is free to refil e a petition to expunge any records hewishes to be destroyed, but he woul d be well-advised t o provide as much accurate information regardingthe char

ges as p

ossibl e so as t

o aid in the loc ation of th e records. The petitioner is also free to add ress the issue of reimbursement at such time.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JERRY L. SMITH, Jud ge

______________________________ THOMAS T. W OODALL, Judge