Simpson v. Georgia, 80-5589
Decision Date | 09 March 1981 |
Docket Number | No. 80-5589,80-5589 |
Citation | 450 U.S. 972,101 S.Ct. 1504,67 L.Ed.2d 808 |
Parties | Patrick SIMPSON, petitioner, v. State of GEORGIA |
Court | U.S. Supreme Court |
On petition for writ of certiorari to the Court of Appeals of Georgia.
The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals of Georgia for further consideration in light of Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220.
I agree with Justice WHITE that the record in this case presents clear evidence of waiver and that remand is therefore inappropriate. Rather than grant the petition for a writ of certiorari, however, I would vote to summarily reverse the conviction for distributing obscene materials in violation of Ga.Code § 26-2101 (1975) under the view I have frequently expressed, and to which I adhere, that such an obscenity statute is facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113, 93 S.Ct. 2628, 2664, 2662, 37 L.Ed.2d 446 (1973) (BRENNAN, J., dissenting); McKinney v. Alabama, 424 U.S. 669, 678, 96 S.Ct. 1189, 1195, 47 L.Ed.2d 387 (1976) (separate opinion of BRENNAN, J.).
We granted certiorari in Wood v. Georgia, 446 U.S. 951, 100 S.Ct. 2961, 64 L.Ed.2d 807 in order to decide whether it is permissible under the Equal Protection Clause for a State to revoke an offender's probation for failure to make regular payments toward the satisfaction of a fine when nonpayment is due to the offender's indigency. This case raises the identical issue.
The majority vacated and remanded Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220, on the ground that petitioners were perhaps deprived of their constitutional right to adequate assistance of counsel by the possibly divided loyalties of their counsel. For reasons that I have explained in my dissent in that case, ante, at 275, 101 S.Ct., at 1105, I do not believe that the Court's disposition of Wood falls within the limits of our jurisdiction. The same jurisdictional limits apply to this case: petitioner at no point sought relief in the Georgia courts on the basis of a claim of ineffective assistance of counsel, nor has there been a final decision on this issue by the highest state court in which a decision could be had, as is required by 28 U.S.C. § 1257(3). Beyond that, however, the State abandoned any suggestion of conflicting interest and has not raised it here.
There is, in my view, even less justification for the majority's disposition of this case than there is for the conclusion reached in Wood. Here, the potential conflict of interest was explained by the trial court to petitioner, and petitioner waived whatever constitutional right he might have had to a different attorney. The transcript in this case shows that the State's attorney raised the conflict of interest issue:
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