¶1(dissenting).
¶2After dwelling so much on what happened in the lower courts in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the majority opinion seems to misapprehend the basis on which the Supreme Court reversed the case. It was held in Douglasthat an indigent defendant cannot be deprived of counsel on appeal even when the court from which he desires to take the appeal makes a determination that he has no meritorious grounds for appeal. Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), held the same to be true when the determination is made by a public defender. The significant point of these two decisions is that the right to an appellate review, with counsel, does not depend on the existence of meritorious grounds.
¶3*20Since, therefore, a convicted defendant need not have meritorious grounds in order to avail himself of the right to counsel on appeal, it is absurd to say that he must nevertheless allege that he did have such grounds in order to show that he has been deprived of that right. Yet that is exactly what the majority opinion says he must do. For that reason I think it is incompatible with Douglasand Lane. I am afraid our reluctance to face up to overruling the dictum in Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (1966), may result eventually in the necessity of overruling both it and this case.
¶4Douglas and Lane were not even discussed in Miller v. United States, 339 F.2d 581 (9th Cir. 1964). Needless to say, I believe that opinion also is unsound.
¶5Sometimes I feel that we are too restrictive in our application of the principles laid down by the Supreme Court because they do not meet with our unqualified approval. Whether we like them, however, is irrelevant. Our only task is to determine whether they apply.
¶6Since I believe the principle of Douglasand Laneapply to this case I dissent from the majority opinion.