              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                     FILED
                             MARCH SESSION, 1995

                                                                   September 20, 1995
WILLIAM A. RANSOM,                  )
                                    )                               Cecil Crowson, Jr.
       Appellant,                   )      No. 01C01-9410-CR-00361
                                                                    Appellate Court Clerk
                                    )
                                    )       Davidson County
v.                                  )
                                    )      Hon. Ann Lacy Johns, Judge
                                    )
STATE OF TENNESSEE,                 )      (Writ of Habeas Corpus)
                                    )
       Appellee.                    )



                                CONCURRING OPINION


              I concur in Judge Hayes' opinion, but I feel compelled to explain why it

was appropriate for the trial court not to treat the petition as one seeking post-

conviction relief. Judge Hayes cites Ray v. State, 489 S.W.2d 849, 850 (Tenn. Crim.

App.), cert. denied (Tenn. 1972), for the proposition that a trial court is not required to

treat a habeas corpus petition as a post-conviction petition, but may do so in its

discretion. See T.C.A. § 40-30-108 (1990), amended by 1995 Tenn. Pub. Acts, ch.

207 § 1 (to be codified at T.C.A. § 40-30-105(c) for actions filed on or after May 10,

1995). This does not mean that a trial court is entitled to refuse to treat an invalid

habeas corpus petition as a post-conviction petition so as to defeat a valid post-

conviction claim. There must be a material or substantial basis to support the trial

court's decision.



              In this case, the petitioner's post-conviction case seeking to attack his

habitual criminal sentence by attacking his underlying convictions has been held in

abeyance pursuant to State v. Prince, 781 S.W.2d 846, 852 (Tenn. 1989), in order for

him to file separate petitions to attack each of his prior convictions. None of those prior

convictions, only his habitual criminal one, occurred in Davidson County. Thus, the
trial court would have no jurisdiction to entertain this petition as one seeking post-

conviction relief for his previous convictions. T.C.A. § 40-30-103(a) (Supp.1994),

amended by 1995 Tenn. Pub. Acts ch. 207 § 1 (to be codified at T.C.A. § 40-30-

104(a)).




                                                 Joseph M. Tipton, Judge




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