dissenting:
The Court holds that the record in this submission need not have reflected the defendant’s understanding of his full rights or of the consequences of his submission, including the range of possible sentences which might be imposed. It does so despite repeated statements of our Supreme Court that where a submission is “tantamount to a guilty plea,” a full record similar to that required for guilty pleas under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), is required, and despite the open acknowledgement by both parties that the submission here was “tantamount to a guilty plea.” Such a result in my opinion is both unsound and illogical.
Beginning with State v. Payne, 110 Ariz. 506, 520 P.2d 1130 (1974), the Arizona Supreme Court in a series of cases has distinguished between submissions which are “tantamount to a guilty plea” and those which are not. In State v. Payne, the court held that where the submission was not tantamount to a guilty plea, where there was some expectation of acquittal, the requirements of Boykin v. Alabama need not be followed. It was sufficient that the defendant be advised that he was giving up his right to a jury trial and that his guilt or innocence would be based solely upon the transcript of the preliminary hearing.
Later that year in State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974), the court reversed a conviction after submission on the basis of the preliminary hearing transcript, holding that the court did not adequately advise the defendant of the rights he was relinquishing in the submission. See also State v. Offing, 113 Ariz. 287, 551 P.2d 556 (1976).
A close reading of Justice Cameron’s opinion in Crowley reveals that the court considered the submission there to be one that was equivalent to a guilty plea, and that in such a case the requirements of Boykin must be met.
“Due process requires that the trial court make a record similar to that required by Boykin v. Alabama, supra, to determine if the decision to submit the case on the preliminary hearing transcript was freely, intelligently, and voluntarily made.” (111 Ariz. at 311, 528 P.2d at 837).
The court cited, with what I believe to be approval, the decision of the California Supreme Court in People v. Levey, 8 Cal.3d 648, 105 Cal.Rptr. 516, 504 P.2d 452 (1973), a decision which the majority today rejects. Later, in State v. Sardo, 112 Ariz. 509, 543 *419P.2d 1138 (1975), the court explained Crowley as follows:
“Crowley requires that it must affirmatively appear in the record that defendants knew the significance and consequences of submitting the case on the basis of the record as well as knowingly and intelligently waiving applicable constitutional rights.” (112 Ariz. at 512, 543 P.2d at 1141).
In State v. Gaines, 113 Ariz. 206, 549 P.2d 574 (1976), the court once again was dealing with a submission which it concluded was not tantamount to a guilty plea. As in State v. Payne, supra, it held that the record being considered was sufficient, but only because the submission was not tantamount to a guilty plea. The court in Gaines stated:
“In cases in which the submission on the record is not equivalent to a guilty plea, the requirements of Boykin are not applicable, but the requirements of due process necessitate that there be a knowing waiver of the constitutional rights relinquished by such submission. It is necessary that the record show that the defendant was advised that he was giving up his right to trial by jury and that the whole issue of guilt or innocence would be decided on the submitted record.” (113 Ariz. at 207, 549 P.2d at 575).
Our Supreme Court has only recently reaffirmed, in an explanation of Crowley, that the requirements of Boykin must be met where the submission is tantamount to a guilty plea:
“[In Crowley ] we were talking about the defendant doing something tantamount to pleading guilty, and, in view thereof, determined that the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), should apply to the situation.” State v. Butrick, 113 Ariz. at 566, 558 P.2d at 911 (filed December 28, 1976).
This distinction between types of submissions thus means that the requirements of Boykin v. Alabama, supra, apply at least in those submissions that can be considered tantamount to a guilty plea. In this case, both the parties agreed that the submission was tantamount to a guilty plea; there was no expectation that the defendant would be found not guilty.
I recognize that today’s decision merely follows this Court’s prior decision in State v. Jackson, 24 Ariz.App. 308, 537 P.2d 1366 (1975), which held that the full requirements of Boykin did not apply in a submission tantamount to a guilty plea. That decision, and to a certain extent some dicta in State v. Hiralez, 27 Ariz.App. 393, 555 P.2d 362 (1976), rested upon what I now believe to be an improper application of State v. Crowley, supra. Crowley held that because in that submission, tantamount to a guilty plea, the defendant had not been advised of certain fundamental matters, the ease had to be reversed. It did not hold that the record need reflect an understanding only of those matters, since Crowley also went on to state that in a case tantamount to a guilty plea, the record must be similar to that required by Boykin.
Boykin v. Alabama, clearly requires that in guilty pleas, the defendant be advised of all rights being waived and the consequences of the plea, including the range of sentence. See State v. Hooper, 107 Ariz. 327, 487 P.2d 394 (1971); State v. Jackson, 17 Ariz.App. 533, 499 P.2d 111 (1972). Boykin rested upon the perceived need to minimize the risk of ignorance, incomprehension, and subtle or blatant threats or inducements which might improperly affect the defendant’s decision to plead guilty. 395 U.S. at 242, 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279. Nothing in our Arizona decisions or in the briefs presented here suggest that such risks disappear when a defendant submits on the basis of the preliminary hearing transcript.
The distinction between different types of submissions is based upon a practical recognition that some submissions are in fact virtually indistinguishable from a guilty plea, while others are not. However, it is true that when this distinction is applied to individual cases it requires the appellate court to second guess the motivations of the defendant, a process which is *420burdensome and fraught with uncertainty. Justice Cameron in his dissent in State v. Gaines, supra, persuasively argues that to avoid such problems, a full record should be made in all submissions. In my opinion, there is much force in this position and indeed it has been adopted by the Supreme Court of California in Bunnell v. Superior Court of Santa Clara County, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 (1975).
The majority’s focus on the question of waiver of right against self-incrimination highlights still another problem in the existing decisions. Is there a material difference between a submission tantamount to a guilty plea and a guilty plea? The majority holds that submissions never involve any waiver of the right against self-incrimination and that therefore a defendant need not be advised of it. Regardless of the merits of that position, I seriously question whether this Court can properly so hold in the light of the authorities stating that some submissions are tantamount to guilty pleas, and that in such cases Boykin requirements apply. See People v. Levey, supra, discussed by our Supreme Court in Crowley, which held that a submission did involve a waiver of the right against self-incrimination and was therefore tantamount to a guilty plea. See also the court’s recent language in State v. Butrick, supra, 113 Ariz. 563, 558 P.2d 908. I can see no legal basis for today’s holding that a submission tantamount to a guilty plea materially differs from a guilty plea.
It is possible, of course, that our Supreme Court may expressly determine that submissions and guilty pleas are materially different in all cases, and that only the minimal record required by the majority’s decision today should suffice in any submission. However, at the present time, the Supreme Court has not so held, and to my knowledge no policy justifications for such a result have been squarely raised by litigants or confronted by that court. Until our law is definitively clarified either by Supreme Court opinion or by rule, I do not believe that this Court should hold that a significantly lesser standard than that required for guilty pleas should apply to submissions.
I, therefore, respectfully dissent.
WREN, Judge.Appellant, on Motion for Rehearing, directs our attention to the recent Supreme Court’s decision of State v. Woods, 114 Ariz. 385, 561 P.2d 306 (1977). The Supreme Court in Woods held that when a submission is tantamount to a guilty plea, the defendant must be advised of the range of possible sentence. In the Supreme Court’s most recent pronouncement on the submission question, a unanimous court held that under the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974), “it must affirmatively appear on the record that the defendant was aware of his right to remain silent and of the range of possible sentence.” State v. Garcia, No. 3625, filed June 9, 1977, slip opinion at p. 3. These holdings conflict squarely with our opinion in this case and a remand is mandated.
Under State v. Woods, supra and State v. Garcia, supra, the trial court committed error in failing to inform appellant of the range of possible sentence and of the right against self-incrimination. See, State v. Encinas, (Supplemental Opinion 1 CA-Cr 2127/2128 filed August 4,1977). Therefore, the case must be remanded to the trial court for an evidentiary hearing to determine whether or not the appellant was aware of his right to remain silent and of the range of possible sentence.
Remanded for proceedings consistent with this opinion.
SCHROEDER, P. J., and EUBANK, J., concur.