¶1concurring and dissenting.
¶2I write separately to supplement certain inadequacies evident in the lead opinion. *311Initially it should be noted that in State v. McClintock, 732 S.W.2d 268 (Tenn.1987), advice about the future consequence of a guilty plea was not at issue. The thrust of the opinion was that a facially valid judgment of conviction on a prior DUI charge, which had not been attacked by post-trial motions or on direct appeal, could not be collaterally attacked in a subsequent prosecution for a second DUI offense, but only by recourse to the Post-Conviction Procedure Act. The opinion pointed out that if the errors of which a defendant complains are of Constitutional dimensions, post-conviction proceedings are available. As this Court clearly summarized in State v. Neal, 810 S.W.2d 131, 140 (Tenn.1991), “In the event of an omission of advice that is constitutionally mandated, relief may be obtained on direct appeal; or, if the plaint has not been waived and relief is timely filed for, upon a post-conviction petition proceeding. Where the admission of advice is simply the failure to conform to a rule or supervisory pronouncement of this Court, and does not involve a constitutional rights deprivation, review and relief must be obtained by direct appeal following entry of the judgment.” This advice was reiterated in Johnson v. State, 834 S.W.2d 922, 925 (Tenn.1992), where the Court stated, “Whether the additional requirements of Mackey were met is not a constitutional issue and cannot be asserted collaterally,” citing State v. Prince, 781 S.W.2d 846, 853 (Tenn.1989).
¶3The lead opinion otherwise considers the transcript of the submission hearings and evidence heard in the trial court and considered in the Court of Criminal Appeals and finds it insufficient to carry the burden imposed on the State in accordance with State v. Neal, supra, in regard to the conviction proceedings. It ends with the conclusion that the decision of the Court of Criminal Appeals cannot be sustained and that the case must be remanded to the trial court for further proceedings, including (but not limited to) an order setting aside the guilty pleas challenged.
¶4The evidence and circumstances involved in a guiity plea submission raised in a collateral attack must first be considered by the post-conviction judge, and, in the event of an appeal, by the intermediate court and ultimately by this Court. As we have repeatedly said, most recently in Johnson v. State, 834 S.W.2d 922 (Tenn. 1992), when a petition charging a trial court failed to advise the petitioner of his constitutional rights and failed to determine that a guilty plea was knowing and voluntary, this allegation, if supported by evidence, is sufficient to shift the burden of going forward to the State. It does not, ipso facto entitle the petitioner to relief. The State may rebut the allegation with proof of substantial compliance with the advice requirement, which would show that the petitioner was made aware of his constitutional rights, or the State alternatively may show that the petitioner was aware of his constitutional rights and that therefore the trial court’s failure to give the mandated advice was harmless error.
¶5Assuming arguendo that remand to the trial court for further proceedings is appropriate, it should be made clear that any rehearing should include all the constitutional and statutory safeguards which the law provides. Neal v. State, supra; Johnson v. State, supra. Moreover, there is obviously an abundance of evidence which was not introduced at this post-conviction hearing. Apparently both lawyers representing defendant at the prior guilty plea submissions are still alive and living in the community, as well as some of the state officers involved. Perhaps one or the other of the trial judges are still available. There is certainly evidence available as to the competency of the respective lawyers representing the petitioner at the guilty plea submissions.
¶6It appears there is little doubt that this petitioner is a career criminal. At the time of the post-conviction hearing he had petitions pending in Robertson County attacking the constitutionality of his guilty plea conviction for robbery; a similar one in Davidson County on a robbery charge, and a third in Rutherford County, all according to his testimony, “basically the same grounds stated in the petition in this case.” It seems remarkable that four (4) different *312judges, at four (4) different trials, in four (4) different counties, would make the same constitutional errors in approving guilty plea submissions. Petitioner’s consistent history of entering guilty pleas began in 1971 and continued through 1987 with, insofar as can be determined from this record, five (5) separate submissions to offenses ranging from robbery to transporting stolen property. In 1987 he accepted a 40-year sentence as a Range II offender to avoid an habitual criminal prosecution, which would have imposed a mandatory life sentence. He now testifies that he is in the process of attempting to set aside his 40-year robbery sentence by asserting substantially the same grounds of unconstitutionality claimed in each of his former submission convictions.
¶7Such a blatant attempt to subvert the processes of justice should not be tolerated and the most clear and convincing evidence should be required to reverse the judgment of a trial court which has heard and considered evidence of the nature offered up in this case. The factual findings of a trial court in a post-conviction relief hearing should not be reversed on appellate review unless the petitioner can establish that the evidence preponderates against those findings. Clenny v. State, 576 S.W.2d 12 (Tenn.Cr.App.1978). Such findings are given the weight of a jury verdict. McCracken v. State, 529 S.W.2d 724 (Tenn.Cr.App.1975). There was ample evidence in this case to sustain the trial court’s findings, within the parameters of the constitutional criteria set by the United States Supreme Court and this Court.
¶8Defendant should be aware that upon a rehearing, if he is successful in establishing that his guilty plea submissions were constitutionally void, he is not free from the onus of the charges against him. A remedy in such cases is to allow a defendant to resubmit a guilty plea in accordance with procedures which meet constitutional requirements, or, in the alternative, he is subject to retrial under the same or a new indictment. United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964); North Carolina v. Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969); Patten v. State, 2 Tenn.Cr.App. 179, 452 S.W.2d 664, 666 (1970), cert den’d 400 U.S. 844, 91 S.Ct. 88, 27 L.Ed.2d 80 (1970).
¶9The State also raised the doctrine of lach-es as a bar to review the 1971 guilty plea. This issue is explicitly rejected in the lead opinion, a view with which I disagree.
¶10The federal courts have recognized the doctrine for many years in habeas corpus petitions by State prisoners alleging constitutional deprivation. In 1976 the Congress amended Rule 9 to Title 28, Sec. 2254, pertaining to delayed or successive petitions. Rule 9(a) provides that a petition may be dismissed if it appears that the State of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the State occurred. The doctrine has been adopted in numbers of sister states in post-conviction proceedings including Kentucky, Strahan v. Blackburn, 750 F.2d 438 (1985); Indiana, Holmes v. State of Indiana, 591 N.E.2d 594 (Ind.App. 3 Dist.1992); Florida, Remp v. State, 248 So.2d 677 (Fla.App.1970). Alabama, Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991); Colo., People v. Bravo, 692 P.2d 325 (Colo.Cr.App.1984).
¶11This Court has held in Burford v. State, 845 S.W.2d 204, 208 (Tenn.1992), it is clear that the State has a legitimate interest in preventing the litigation of stale or fraudulent claims, citing Jimenez v. Weinburger, 417 U.S. 628, 636, 94 S.Ct. 2496, 2501, 41 L.Ed.2d 363, 370 (1974). In Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 163, 100 L.Ed. 83 (1955), the United States Supreme Court said, “No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.” The test is whether the time period provides an applicant a reasonable opportunity to have the claimed issue heard and deter*313mined. Michel, supra,350 U.S. at p. 99, 76 S.Ct. at p. 168.
¶12It seems only reasonable that a rule which complies with federal standards in cases of this nature should apply. Such a rule in this case would entitle the petitioner to test the constitutionality of his 1971 conviction with whatever evidence he is able to muster. The State then should be afforded an opportunity to make a showing that it has been prejudiced as a result of the petitioner’s delay. If the State makes out a prima facie case the burden shifts to the petitioner to show either that the State actually is not prejudiced or that the delay in testing the constitutionality of his conviction is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the State occurred. If he fails to carry this burden the guilty plea submission conviction must stand.
¶13Subject to these comments I concur in results in the lead opinion.