Although the Supreme Court has not said expressly that Anders should operate retroactively, it has applied Anders retroactively in Walker v. Wainwright, 387 U.S. 236, 87 S Ct 1708, 18 L ed 2d 747 (1967), a state collateral proceeding, 188 So.2d 824 (1966), and in a number of cases pending on appeal when Anders was decided. Melvin Lewis Elliott v. Oregon, 387 U.S. 571, 87 S Ct 2070, 18 L ed 2d 967 (1967); Walter Fox v. Oregon, 388 U.S. 466, 87 S Ct 2129, 18 L ed 2d 1324 (1967); Camodeo v. United States, 387 U.S. 575, 87 S Ct 2070, 18 L ed 2d 966 (1967) (a direct appeal from a federal conviction); Belcher v. Wisconsin, 387 U.S. 241, 87 S Ct 1707, 18 L ed 2d 746 (1967); Barnett v. Nevada, 387 U.S. 243, 87 S Ct 1708, 18 L ed 2d 747 (1967); Jack William Smith v. Arizona, 389 U.S. 10, 88 S Ct 111, 19 L ed 2d 10 (1967). It is not necessary to grant a delayed appeal as we authorized in Shipman v. Gladden and Welch v. Gladden, supra. It is only necessary to reinstate petitioner's appeal from the enhanced penalty.

We respectfully submit that the dissent has failed to come to grips with Anders, which states outright — as the above quotations make clear — that the Constitution forbids us to affirm the judgment in the present posture of the case. Our doubts as to the permissibility of our entering an order at this time dismissing the appeal for lack of a non-frivolous question are underscored by the order in Fox v. Oregon, 388 U.S. 466, 87 S.Ct. 2129, 18 L.Ed. 1324 (1967), whereby the judgment in Oregon v. Fox, 421 P.2d 977 (Ore.Sup.Ct. 1966) was vacated and remanded for further consideration in the light of Anders. Fox's trial counsel was appointed to handle this appeal and resigned upon his showing that he could find no merit in the appeal. The court then appointed a Deputy Public Defender, who in turn was allowed to withdraw upon his showing that he could find no meritorious grounds for appeal. The defendant then filed a brief pro se. The Oregon Supreme Court held there was no merit in any of the defendant's contentions.

State v. Fox, 245 Or. 440, 421 P.2d 977 (1967). Because Fox was not represented by counsel on appeal, the Supreme Court of the United States, 388 U.S. 466, 87 S Ct 2129, 18 LEd2d 1324 (1967), vacated the judgment and remanded the case to this court for further consideration in light of Anders v. California, 386 U.S. 738, 87 S Ct 1396, 18 LEd2d 493 (1967). Thereafter the Public Defender was again appointed to represent the defendant, new briefs were filed, and the appeal was heard anew.