¶1(concurring in part, dissenting in part).
¶2I agree with the majority opinion up to the point where the majority decide the case will be remanded for further evidence.
¶3At the time of the post-conviction hearing, Boykin v. Alabama., 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, (followed in Nachtigall v. Erickson, 1970, 85 S.D. 122, 178 N.W.2d 198; and Merrill v. State, 1973, 87 S.D. 285, 206 N.W.2d 828) laid out the prima facie proof which the State was required to adduce at the post-conviction hearing to successfully rebut the allegations of the post-conviction petition. One fair hearing is all either party in this case was entitled to, upon the issues raised by the post-conviction petition. It is my understanding the State does not claim surprise nor did it seek a continuance of the hearing because of witness unavailability. Since the case law upon which the decision would turn was settled well before the hearing, and since the State was given an opportunity to present its factual evidence, there is in my opinion no basis in this record for granting the State a second hearing. I would therefore reverse the conviction.
¶4I am authorized to state that ZASTROW, J., joins in this concurrence in part and dissent in part.