discussing retroactivity of newly enunciated constitutional principles
How later courts described this case
- discussing retroactivity of newly enunciated constitutional principles
- recent federal law of retroactivity in criminal cases rendered old ease not controlling
Written by the judges who cited it.
The opinion
Alcorn, C. J.
(concurring). I concur in the result reached by the court because I do not believe that the Griffin rule was intended to apply, or does apply, to a state of facts such as those in the present case under the holding and language of the two O’Connor cases and Tehan v. Shott. In the second O’Connor case, 385 U.S. 92, 93 , 87 S. Ct. 252 , 17 L. Ed. 2d 189 , the court applied the Griffin rule to cases in which the “conviction was not final when the decision in Griffin was rendered.” Footnote three in Tehan v. Shott, 382 U.S. 406 , 409, 86 S. Ct. 459 , 15 L. Ed. 2d 453 , applied the Griffin rule “to cases still pending on direct review at the time it was announced” or, in other words, not “to cases in which the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari elapsed or a petition for certiorari finally denied, all before April 28, 1965.” When Griffin was decided, a petition for certiorari was before the United States Supreme Court in the first O’Connor case. It was in that context that the retroactivity of Griffin was determined. I do not believe that the United States Supreme Court had in contemplation a case such as the present one in which an unexercised right of appeal was revitalized in an independent proceeding eight years after the judgment had apparently become final.