Tokman v. State

ON PETITION FOR REHEARING OR IN THE ALTERNATIVE TO CLARIFY OPINION PATTERSON, Chief Justice, for the Court: George David Tokman filed a Motion to Vacate, or Set Aside, his conviction of capital murder and sentence of death by a jury in the Circuit Court of the First Judicial District of Hinds County. The conviction and sentence were affirmed by this Court on June 1, 1983, and rehearing was denied August 17, 1983. Tokman v. State, 435 So.2d 664 (Miss.1983). Subsequently the U.S. Supreme Court denied Tokman’s Petition for Writ of Certiorari. — U.S. -, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984). This motion was filed on October 1, 1984, in accordance with the Mississippi Uniform Post-Conviction Collateral Relief Act (Collateral Relief Act), § 99-39-1, et seq. (Supp.1984). Among Tokman’s numerous (19) claims for relief is the contention that he was deprived of his right to effective assistance of counsel as mandated by the Sixth and Fourteenth Amendments to the United States Constitution. Twelve instances of believed tó be “ineffectiveness” are cited in support of this proposition. To this argument the state responded, “Many of these issues of ineffective assistance of counsel cannot be resolved on the face of the record; therefore, the state agrees that leave should be granted for an evidentiary hearing on these issues.” Because this point is not in dispute, we are of the opinion petitioner’s application for leave to proceed in the trial court should be granted on the issue of ineffective assistance of counsel. Mississippi Code Annotated, § 99-39-27 (Supp.1984). APPLICATION GRANTED. PETITION FOR REHEARING DENIED. OPINION CLARIFIED. WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.