Elliott v. Gladden
Court | Supreme Court of Oregon |
Citation | 82 Or.Adv.Sh. 335,244 Or. 134,411 P.2d 287 |
Parties | Thomas E. ELLIOTT, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent. |
Decision Date | 24 February 1966 |
Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed a brief for appellant.
Wayne M. Thompson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.
Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and SCHWAB, JJ.
On July 26, 1963, petitioner Elliott was convicted in Lane county of the crimes of burglary and assault with intent to kill. On July 31, 1963, he was sentenced to maximum terms in the penitentiary. He did not appeal the convictions. Later he filed a petition for post-conviction relief. He alleged, and it was established by a hearing, that Elliott after his arrest and before he was advised of his right to counsel and to remain silent, confessed to the crimes. The confession was used against him at the trial. This case, therefore, presents the question: Will State v. Neely, 1965, 239 Or. 487, 395 P.2d 557, 398 P.2d 482, and Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, be given retrospective application to cases that had been concluded by a final judgment prior to the decisions in Escobedo and Neely? The trial court said 'no.' Petitioner appeals.
In reliance on the opinions in Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, and Tehan v. United States, 1966, 86 S.Ct. 459, we hold that we will not give Neely and Escobedo retrospective application to the cases that had been 'finally decided' before June 22, 1964, the date of the Escobedo decision. See Linkletter v. Walker, supra, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d at 603 and at 614.
Affirmed.
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