Opinion
Rehearing Denied April 1, 1975. Opinion Superseded 330 N.E.2d 750.
Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., James M. Garrettson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Before ROBERTSON, C. J., and LOWDERMILK and LYBROOK, JJ.
PER CURIAM.
Emert appeals the denial of his petition for post-conviction relief from a guilty plea entered on January 15, 1973 on a charge of violating the 1935 Firearms Act.
We reverse.
Our Supreme Court has construed Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 as requiring an in-court advisement and waiver of a defendant's right to trial by jury, right to confront his accusers, and privilege against self-incrimination prior to acceptance of a guilty plea. Brimhall v. State (1972), Ind., 279 N.E.2d 557.
Prior to arraignment, Emert's counsel read a written form to him which contained an explanation of the constitutional rights which would be waived upon entry of a guilty plea. Emert's signature appears on the form.
During the arraignment proceedings, the trial court did not personally advise Emert of his constitutional rights. Emert was asked only if he understood what had been read to him from the form by his attorney.
Such procedure does not satisfy the requirements of Boykin v. Alabama, supra and Brimhall v. State, supra, as previously held by this court:
'The court's duty to advise is non-delegable and is not discharged by a showing, as in the instant case, that defendant's constitutional rights were explained to him by court appointed counsel prior to arraignment.' Kite v. State (1974), Ind.App., 318 N.E.2d 390.
Reversed and remanded with instructions to grant petitioner relief by vacating his judgment of conviction and plea of guilty.