           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
