State v. Stewart

11 CARAWAY, Judge,

dissenting.

I respectfully dissent from the majority opinion for the reasons set forth in my original opinion. The argument of the majority was forcefully voiced by the dissent in State v. Martin, 427 So.2d 1182 (La.1983) (see Chief Justice Calogero’s dissent). I remain convinced, however, that the majority opinion from our Supreme Court in Martin, which has not been overruled, may still be followed in this case where this defendant made no showing that he was unrepresented by counsel. Again, by further postconviction relief proceedings, defendant may make a collateral attack on the presumption of regularity of the prior judgment of conviction, but the burden of proof is on the defendant. The two competing concerns, collateral attacks on judgments and the defendant’s right to counsel, were weighed in Martin, and the balance struck would now be overruled by the majority opinion.