FILED

March 2, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY 1999 SESSION

STATE OF TENNESSEE, )

) C.C.A. NO. 01C01-9801-CR-00006

Appellee, )

) DAVIDSON COUNTY

VS. )

) HON. SETH NORMAN,

WILLIE ANDREW COLE, ) JUDGE

)

Appellant. ) (Expunction)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIE ANDREW COLE JOHN KNOX WALKUP

R.M.S.I. Unit 6-B Attorney General & Reporter

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,

Judge
2

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 was dismissed prior to trial. By order

dated November 18, 1997, the trial court denied each of the petitioner’s petitions, stating,

“After diligent search the Clerk of the Criminal Court is unable to locate any charges

which can be identified as the warrants set out in the petitions. The [case] numbers set

out in the petitions are alien to any system used by that office.” The petitioner now

appeals to this Court.

First, the petitioner argues that the trial court’s order should be reversed and

this case remanded for expunction because the trial court had no discretion to deny his

petitions. The petitioner correctly argues that expunction of records pursuant to a proper

petition is not a matter of discretion. State v. Liddle, 929 S.W.2d 415 (Tenn. Crim. App.

1996); see T.C.A. § 40-32-101(a). The order on review, however, reflects that the trial

court did not deny the petitioner’s petition as a matter of discretion. Rather, the trial court

denied the petitioner’s petitions because the records relating to the charges to which the

petitioner referred could not be found. If the records cannot be found, they cannot be

expunged. The petitioner notes in his appellate brief that he referred to the files he

wanted expunged by the numbers he found on an FBI “rap sheet” found in his prison file.

Apparently, these numbers do not correlate with the numbering system used by Davidson

County. If the petitioner wants the public records relating 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 will help the clerk locate 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. Specifically, the petitioner complains 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 entire appellate record

to this Court so that we may properly consider 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 is not entitled to expunction of documents that cannot be

located because the information the petitioner supplied was insufficient to locate the

documents to which he referred. Thus, even assuming the appellate record is in fact

incomplete, it does not preclude our full and meaningful review of this case.

The petitioner also contends on appeal 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 petitions. The petitioner also claims

that on November 17, 1997, he filed a petition with the Tennessee Supreme Court for the

appointment of special counsel to rule on his petitions. He claims that filing this petition

cost him one hundred fifty-two dollars and seventy-five cents ($152.75). The record

reflects that one day later, on November 18, 1997, the trial court entered an order

denying his petitions. The petitioner claims he should be reimbursed for the cost of filing

a petition with the Tennessee Supreme Court because under T.C.A. § 40-32-101(a), the

person requesting expunction shall not be charged for the cost of the expunction and

because, according to the petitioner, the trial court and/or the clerk’s office “intentionally”

failed to inform him that the trial court had denied his petition until August 25, 1998, when
1

The petitioner notes the trial court’s November 18, 1997, order reflects 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 why he did not tim ely

receive a copy of the trial court’s order, if that was in fact the case.

4

he received the appellate record in this case.1

Evidence to substantiate the petitioner’s claims does not appear in the

record. Because this Court is not a fact-finding court, we decline to address any issue

regarding reimbursement before it is properly presented to the trial court.

We affirm the trial court’s order denying the petitioner’s petitions for

expunction. The petitioner is free to refile a petition to expunge any records he wishes

to be destroyed, but he would be well-advised to provide as much accurate information

regarding the charges as possible so as to aid in the location of the records. The

petitioner is also free to address the issue of reimbursement at such time.

_______________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________

JERRY L. SMITH, Judge

______________________________

THOMAS T. WOODALL, Judge