STATE of North Carolina
v.
Arthur GOFF.
No. 86.
Supreme Court of North Carolina.
January 15, 1965.*696 T. W. Bruton, Atty. Gen., and Andrew A. Vanore, Jr., Staff Attorney, for the State.
Arthur Goff in pro. per.
SHARP, Justice.
The petition for certiorari is granted and decision rendered as hereinafter stated. When, in 1963, two years after defendant was tried in August 1961, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R. 2d 733, overruled Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (which, decided in 1942, reaffirmed the original and ancient rule that the Sixth Amendment of the national Constitution applied only to trials in the federal courts), defendant-petitioner became entitled ex post facto to have had an attorney at his trial in 1961. State v. Johnson, N.C., 139 S.E.2d 692. He was entitled, also, to counsel at his post-conviction hearing before Parker, J., in June 1962. G.S. § 15-219; Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891, 55 A.L.R. 2d 1055, rehearing den. 351 U.S. 958, 76 S. Ct. 844, 100 L. Ed. 1480. At the trial, Goff did not request counsel; at the post-conviction hearing, he did. Where, however, the assistance of counsel is a constitutional requisite, the right to have it does not depend upon a request. Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70; State v. Roux, 263 N.C. 149, 139 S.E.2d 189.
The orders of Parker, J., and Burgwyn, E. J., in the post-conviction proceedings are reversed, and this cause is remanded to the Superior Court of Pitt County with directions to enter an order vacating the judgment and commitment in Case No. 7752 and instructing the solicitor to proceed with reasonable promptness to try defendant-petitioner de novo upon the bill of indictment returned at the August 1961 Term, unless the solicitor should otherwise dispose of the case in some manner consistent with the obligation of his office. State v. Johnson, supra; Bottoms v. State, 262 N.C. 483, 137 S.E.2d 817.
Reversed and remanded.