Worthen v. State , 1985 Okla. Crim. App. LEXIS 324 ( 1985 )

ORDER GRANTING PETITION FOR REHEARING, AND WITHDRAWING OPINION FROM CIRCULATION

On October 22, 1985, this Court entered an opinion affirming the conviction of the above appellant in the above numbered appeal for the charge of Distribution of Marijuana, After Former Conviction of Two or More Felonies. Appellant was sentenced to eighteen years’ imprisonment and a fine of Seven Thousand Five Hundred Dollars ($7,500).

In the petition for rehearing filed November 12, 1985, it is set forth that the court appointed attorney who represented appellant in this trial had previously served as assistant district attorney and successfully convicted appellant in the two former convictions which were used for enhancement of punishment. It is therefore asserted that the attorney was operating under an actual conflict of interest and should have informed the court of his conflict of interest, at the time of his appointment' as counsel. We believe the petition for rehearing contains merit and should be granted.

The United States Supreme Court held in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1976), that a defense counsel has an ethical obligation to avoid conflicting representations and to advise the court promptly to avoid conflict of interest arising during the course of trial. See also this Court’s holdings in Howerton v. State, 640 P.2d 566, 567 (Okl.Cr.1972); Manous v. State, 690 P.2d 473 (Okl.Cr.1984); and Jennings v. State, (Unpublished order September 14, 1984).

This Court finds, under the circumstances of this case, that an evidentiary hearing may be necessary to clarify the appellant’s contentions relative to the asserted conflict of interests.

IT IS THEREFORE THE ORDER OF THIS COURT, that the petition for rehearing shall be granted. It is further ordered that the Opinion of October 22, 1985, SHALL BE WITHDRAWN FROM PUBLICATION.

ED PARKS, Presiding Judge TOM BRETT, Judge