Opinion
No. 59319.
March 18, 1977.
M. H. Gertler, Gertler Gertler, New Orleans, for plaintiff-relator.
Harry F. Connick, Dist. Atty., New Orleans, for defendant-respondent.
IN RE: EDWARD CLAYTON, APPLYING FOR WRIT OF HABEAS CORPUS AND REVIEW.
Writ refused. The record shows that plea was free and voluntary.
TATE, J., assigns as additional concurring reasons that this plea of guilty was made prior to State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).
DIXON, J., is of the opinion this writ must be granted. There is no contemporaneous record of a Boykinization. The attempt to reconstruct the Boykinization shows the defendant was not informed of and did not waive his privilege against self-incrimination, his right to trial by jury nor his right to confront his accusers. Here the court fails to follow state law, to say nothing of federal law. In State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85, we set aside the plea of guilty for failure to comply with Boykin. The plea of guilty in Jackson was taken on February 24, 1970. The plea in this (Clayton) case was taken September 21, 1970. The attempt in LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557, to limit the application of Boykin to pleas entered after Dec. 8, 1971, the date of the finality of Jackson v. Henderson, received only 3 votes on this court and could not in any event postpone the application and effect of Boykin v. Alabama.
CALOGERO, J., is of the opinion the writ should be granted.