¶1dissenting.
¶2I dissent from the position taken by the majority that transfer should be granted and the trial court affirmed. I believe the Court of Appeals correctly determined that the burden was on Petitioner (below) Cle-land to show by a preponderance of the evidence that he had a right to relief and that he had to make such a showing by presenting some evidence. This is particularly true since the State of Indiana relied upon the defense of lackes, I do not believe we can say in any type of pleading that the plaintiff can maintain his position by pleading under oath and then resting on that pleading. That was certainly the thinking of the State when it rested following the resting of Petitioner's case.
¶3I do not agree with the majority that the trial court invited Petitioner to rest on his petition under oath. The court asked him what course he meant to pursue and it was Petitioner's responsibility to try his lawsuit and not that of the court. The trial court may bave made such an inquiry because it was apparent there were no witnesses present or there may have been some indication that Attorney Murphy intended to do no more. Whatever we might surmise, however, it is true that Petitioner brought this petition for post-conviction relief and then offered no evidence in support of it.
¶4I further do not agree with Petitioner's argument that the State raised different reasons for objecting to the court's actions at trial than it did here. The State moved for a Rule 50 judgment which was to say that Petitioner Cleland had not carried his burden and the State was therefore entitled to judgment. Furthermore, I don't think we can find a waiver by the State here where there is such fundamental error as to enter judgment for a party that has given no evidence whatever. I agree with the reasoning of the Court of Appeals and my view is that we should deny transfer.
¶5GIVAN, C.J., concurs.