Elliott v. Gladden

411 P.2d 287, 244 Or. 134, 1966 Ore. LEXIS 422

• Court: Oregon Supreme Court
• Decided: February 24, 1966
• Status: Published

Opinion

SLOAN, J.

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, lie was sentenced to maximum terms in tbe penitentiary. He did not appeal tbe 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 P2d 557, 398 P2d 482, and Escobedo v. State of Illinois, 1964, 378 US 478, 84 S Ct 1758, 12 L Ed2d 977, be given retrospective application to eases that had been concluded by a final judgment prior to the decisions in Escobedo and Neelyí The trial court said “no.” Petitioner appeals.

In reliance on the opinions in Linkletter v. Walker, 1965, 381 US 618, 85 S Ct 1731, 14 L Ed2d 601, and Tehan v. United States, 1966, 382 US 406, 86 S Ct 459, 15 L Ed2d 453, 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, 14 L Ed2d at 603 and 614.

Affirmed.