Smith v. Oklahoma, 82-6830
| Decision Date | 31 October 1983 |
| Docket Number | No. 82-6830,82-6830 |
| Parties | Larry Dean SMITH v. OKLAHOMA |
| Court | U.S. Supreme Court |
The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is granted. The judgment is vacated insofar as it leaves undisturbed the death penalty imposed and the case is remanded to the Court of Criminal Appeals of Oklahoma for further consideration in light of the position presently asserted by the Attorney General of Oklahoma in his memorandum filed September 14, 1983.
I concur in the remand of this case to the Court of Criminal Appeals of Oklahoma, but I am neither comfortable nor content with this Court's vacation of only the death penalty. I would vacate petitioner's conviction as well as his sentence and thereby permit the Court of Criminal Appeals to review the case afresh. That court is free, of course, after appropriate consideration and if the circumstances warrant, to reinstate the conviction. I, however, would have the Oklahoma tribunal make that move affirmatively, rather than be tempted (it would be error, in my view) not to act at all because it misperceives an implication in this Court's vacation limited to the death penalty.
I reach this conclusion because the Attorney General of Oklahoma, in his response to the petition for a writ of certiorari, says only:
As I read that concession by the State, it means that there was no intent on petitioner's part to kill and,...
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