375 U.S. 2

Clyde PICKELSIMER, Jr.
v.
Louie L. WAINWRIGHT. Martin A. MIHELCICH, petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections. Donald COWAN, petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections of Florida. Joseph R. DUMOND, petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections. R bert Clayton SHARP, petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections. William E. BAKER, petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections. Sidney James HEARD, petitioner, v. L.L. WAINWRIGHT, Director, Division of Corrections. Arthel CAMPBELL, petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections. [2-Continued] Lafayette E. MITCHELL, petitioner, v. L.L. WAINWRIGHT, Director, Division of Corrections. Roy KITCHENS, petitioner, v.

Petitioners pro se.

Richard W. Ervin, Atty. Gen. of Fla., and A. G. Spicola, Jr., Asst. Atty. Gen., for respondents Pickelsimer, Sharp and Heard.

Richard W. Ervin, Atty. Gen. of Fla., and George R. Georgieff, Asst. Atty. Gen., for respondents Mihelcich, Cowan and Kitchens.

Richard W. Ervin, Atty. Gen. of Fla., and James G. Mahorner, Asst. Atty. Gen., for respondents Dumond, Baker, Campbell and Mitchell.

PER CURIAM.

The motions for leave to proceed in forma pauperis and the petitions for writs of certiorari are granted. The judgments are vacated and the cases are remanded to the Supreme Court of Florida for further consideration in light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

I am unable to agree with the Court's summary disposition of these 10 Florida cases, and believe that the federal question which they present in common is deserving of full-dress consideration. That question is whether the denial of an indigent defendant's right to court-appointed counsel in a state criminal trial as established last Term in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, invalidates his pre-Gigeon conviction.

When this Court is constrained to change well-established constitutional rules governing state criminal proceedings, as has been done here and in other recent cases, see, e.g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, it seems to me that the question whether the States are constitutionally required to apply the new rule retrospectively, which may well require the reopening of cases long since finally adjudicated in accordance with then applicable decisions of this Court, is one that should be decided only after informed and deliberate consideration. Surely no general answer is to be found in 'the fiction that the law now announced has always been the law.' Griffin v. Illinois, 351 U.S. 12, 26, 76 S.Ct. 585, 594, 100 L.Ed. 891 (Frankfurter, J., concurring). Nor do I believe that the circumstance that Gideon was decided in the context of a state collateral proceeding rather than upon direct review, as were the new constitutional doctrines enunciated in Mapp and Ker, forecloses consideration of the retroactivity issue in this instance.1

In the current swift pace of constitutional change, the time has come for the Court to deal definitively with this important and far-reaching subject.2 Without intimating any view as to how the question should be decided in these cases, I would set one or more of them for argument.3

The Court's opinion in Gideon contains no discussion of this issue. Similarly, in cases decided last Term in which we summarily vacated the judgment and remanded for further consideration in light of Gideon, e.g., Bryant v. Wainwright, 374 U.S. 492, 83 S.Ct. 1884, 10 L.Ed.2d 1047, the question of retroactivity was not treated in the disposiitions.

Such cases as Eskridge v. Washington State Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, and Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366 10 L.Ed.2d 456, hardly constitute precedents for a rule of general application.

In all but two of these cases, the State suggests that the judgments can be supported on an adequate independent state ground, even though the Florida Supreme Court denied relief without hearing or explanatory opinion, and despite the apparent concession in Nos. 36 and 87 that the state court did face the federal question and rule adversely to the petitioners. It is abundantly clear that each of the state grounds suggested is either plainly unavailing or so tenuous that it would be disrespectful of the Florida Supreme Court to regard it as the basis of that cout's judgment. Cf. Klinger v. Missouri, 13 Wall. 257, 20 L.Ed. 635; Adams v. Russell, 229 U.S. 353, 358-359, 33 S.Ct. 846, 847-848, 57 L.Ed. 1224; Williams v. Kaiser, 323 U.S. 471, 478-479, 65 S.Ct. 363, 367-368, 89 L.Ed. 398. Accordingly, I am satisfied that the federal question is properly before this Court in all of the cases.