McElhaney v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1997 SESSION May 1, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
RICKY W. MCELHANEY, )
) C.C.A. NO. 03C01-9603-CR-00097
Appellant, )
) HAMILTON COUNTY
VS. )
) HON. STEPHEN M. BEVIL,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
RICKY W. MCELHANEY, pro se JOHN KNOX WALKUP
MCRCF Attorney General & Reporter
Wartburg TN 37887
TIMOTHY F. BEHAN
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
WILLIAM H. COX III
District Attorney General
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
On December 14, 1995, the petitioner filed his “Application for Post-
Conviction Relief Amended Petition” in Hamilton County, Tennessee.1 In this petition, he
attacks a 1979 conviction rendered in Davidson County, Tennessee. The court below
entered a preliminary order of dismissal on the grounds that the petition was filed in the
wrong county. The petitioner appeals therefrom. We affirm the court below.
As correctly noted by the court below, petitions for post-conviction relief
must be filed in the county in which the conviction occurred. T.C.A. § 40-30-204(a). The
petitioner’s petition was therefore properly dismissed summarily. This issue has no merit.
The judgment below is affirmed.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
PAUL G. SUMMERS, Judge
______________________________
CORNELIA A. CLARK, Special Judge
1
Appar ently, the petitione r initially filed or attem pted to file his p etition in Dav idson C ounty. In
response thereto, the Davidson County District Attorney General wrote a letter to the petitioner stating,
“Enclosed please find the copy of your Petition for Post Conviction Relief. This matter should be filed
with the Criminal Court Clerk of Hamilton County, Tennessee where your conviction originated.” In filing
his petition in Hamilton County, the petitioner was apparently following this legal advice given to him by
the State, which the State now concedes was incorrect. We question the practice of the District Attorney
Gene ral giving lega l advice to his advers aries. Fu rtherm ore, it is the trial cou rt’s respo nsibility to
determ ine wheth er post-c onviction p etitions are f iled in acco rdance with statutor y requirem ents. See
T.C.A. § 40-30-206(a) and (b).
2