McElhaney v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9603-CR-00097
• Status: Published

Opinion

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).