This is an appeal from a judgment denying post-conviction relief. In 1963 petitioner Guse was convicted of burglary and on May 13, 1964 we affirmed the conviction.
State v. Guse,
The issue is whether the rule of
Escobedo v. Illinois,
Mapp v. Ohio,
In
Linkletter v. Walker, supra,
When
Elliott v. Gladden,
82 Or Adv Sh 335,
*409 Turning to the Linkletter case we find that Victor Linldetter was convicted of burglary in Louisiana on May 28, 1959. The trial court considered and rejected the claim that evidence admitted against him was unlawfully seized, and the conviction was affirmed by the Supreme Court of Louisiana in February of 1960. Immediately after the United States Supreme Court decided the Mapp case on June 19, 1961, Link-letter sought habeas corpus relief. The United States Supreme Court affirmed the lower court’s denial of relief to Linkletter, saying that only limited retroaction should be applied to the Mapp rule. In reaching its decision the Supreme Court said:
“* * * [W]e are concerned only with whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before rendition of our opinion.”381 US at 622 .
The court then defined “final” in a footnote reading:
“By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before the decision in Mapp v. Ohio.”381 US at 622 .
The fact that the United States Supreme Court used the technique of defining the word “final” in a footnote makes the definition no less meaningful than if it were in the body of the opinion.
In
People v. Polk,
47 Cal Rptr 1,
“* * * The judgment on the issue of guilt was affirmed on March 31, 1964. (People v. Polk,61 Cal.2d 217 ,37 Cal. Rptr. 753 , 390, P.2d 641). Within the 90 days thereafter in which defendants could have applied for certiorari (see 28 U.S.C. § 2101 (d); rule 22, Rules of the United States Supreme Court), on June 22, 1964, the United States Supreme Court decided the Escobedo case. Thus the judgment on the issue of guilt was not final at the time of Escobedo, since the United States Supreme Court has stated that ‘ [b]y final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed * * *.' (Linkletter v. Walker,381 U.S. 618 , 85 S Ct. 1731, 1734, fn. 5,14 L.Ed.2d 601 ).” (Emphasis supplied.) 47 Cal Rptr at p. 4.
The Oregon State Bar Committee in its Continuing Legal Education Handbook has similarly interpreted Linkletter.
“* * * The U.S. Supreme Court held that the Mapp ruling did not apply to state-court convictions which had become ‘final,’ meaning that the judgment of conviction had been rendered and the availability of appeal exhausted and the time for petition for certiorari to the United States Supreme Court elapsed before the decision of Mapp on June 19, 1961.” Oregon Criminal Law Handbook, Part IV-Constitutional Questions, ch 21, § 21.25, Carl R. Neil, Right to Counsel (1965). (Emphasis supplied.)
Elliott v. Gladden, supra, is consistent with the California court’s interpretation of Linkletter in *411 People v. Polk, supra. Elliott exhausted his state remedies almost a year before the date of the Escobedo decision. In holding, “we will not give Neely and Escobedo retrospective application to the cases that had been finally decided’ ” (82 Or Adv Sh at 336) before Escobedo was handed down, we had no reason to consider the effect of the 90-day period in which to petition for certiorari and therefore no reason to discuss the Linkletter interpretation of the word “final.”
It appears from
Tehan v. United States,
In his petition for post-conviction relief Guse alleged that after he had been arrested the police obtained a confession from him without advising him of his right to remain silent and right to counsel. The trial judge in his opinion stated that there was some evidence that Guse knew his constitutional rights at the time he confessed. However, his order stated that it was unnecessary to decide “whether or not petitioner was effectively advised or knew of his rights” prior to confessing because
Escobedo
had no application. The trial court’s order dismissing Guse’s petition was based on the fact that Guse’s conviction was affirmed
*412
on appeal by this court on May 13, 1964,
State v. Guse,
It follows that Gfuse is entitled to the benefits of the Escobedo rule in a post-conviction proceeding collaterally attacking his conviction — -not because the judgment of this court affirming his conviction was not final at the time the Escobedo decision was published —but because his conviction was affirmed by final judgment of this court less than 90 days prior to the date of the Escobedo decision. The evidence offered in G-use’s post-conviction proceedings must be considered in light of Escobedo and subsequent opinions of this court construing and applying that decision.
Reversed and remanded.
Notes
In Linkletter v. Walker,
supra,