State v. Willie Cole ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY 1999 SESSION
March 2, 1999
Cecil W. Crowson
Appellate Court Clerk
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
OPINION
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.
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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
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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. W OODALL, Judge
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 wh y he did not tim ely
receive a copy of the trial court’s order, if that was in fact the case.
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