¶1dissenting. The majority, in accepting the arguments of the defendant, stray from our rules of procedure as well as from our substantive law.
¶2The plaintiff, now appellant, filed his complaint for declaratory judgment and mandamus. The defendant answered, stating the complaint was “incorrect,” and asked that the complaint be denied without a hearing. The defendant did not move for a dismissal for failure to state facts upon which relief can be granted, ARCP Rule 12(b) (6), nor did he move for a judgment on the pleadings, ARCP Rule 12(c), nor did he move for summary judgment, ARCP Rule 56. No affidavits were submitted. No briefs were allowed. Immediately after the answer was filed, the trial court ruled that the “allegations of the petitioner do not correctly state the facts and the petitioner is not entitled to the relief requested.”
¶3The plaintiff alleged that he pleaded guilty on September 19, 1966, without assistance of counsel. In testing the sufficiency of the complaint the allegations must be accepted as true. In addition, an exhibit indicates the allegation is true. Next, he alleged that on October 24, five days after he pleaded guilty, counsel was appointed and he was sentenced. The Supreme Court has ruled that it is reversible error to admit, for purposes of enhancing a sentence, evidence of a prior conviction by a guilty plea entered by a defendant unrepresented by counsel at the time of the plea. Burgett v. Texas, 389 U.S. 109 (1967). Therefore, the complaint substantively stated a cause of action and should not have been dismissed.