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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON OCTOBER 1998 SESSION

FILED
December 28, 1998 Cecil Crowson, Jr.
Appellate C ourt Clerk

SYLVESTER SMITH, Appellant, VS. STATE OF TENNESSEE, Appellee.

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NO. 02C01-9801-CR-00018 SHELBY COUNTY HON. BERNIE WEINMAN, JUDGE (Post-Conviction)

OPINION CONCURRING IN PART; DISSENTING IN PART

I agree in most respects with the well-written majority opinion by Judge David G. Hayes. I agree, as the state concedes, that petitioner was deprived of effective assistance of counsel at the sentencing phase due to counsel's failure to recognize the necessity for and present appropriate proof of "mental retardation" which would disqualify petitioner from the death penalty. See Tenn. Code Ann.

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