concurring in result.
I agree that in this instance the admission of appellant's oral confession does not warrant reversal of his conviction. I believe the majority errs, however, in stating that this court may never, absent objection at trial, review the admission of illegally obtained evidence.
The fundamental error doctrine permits an appellate tribunal to address an error not otherwise preserved for review if the error appears plainly on the face of the record and is of such consequence that it denied the defendant due process. Rowley v. State, (1982) Ind., 442 N.E.2d 343. The United States Supreme Court has repeated*757ly held the admission of an involuntary confession deprives a defendant of due process of law. Mincey v. Arizona, (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290; Jackson v. Denno, (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Payne v. Arkansas, (1958) 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. Accordingly, we may review the admission of an involuntary confession under the doctrine of fundamental error despite appellant's failure to object at trial.
The determination of whether an error is fundamental requires three distinct steps: 1) could the alleged error have denied the defendant due process; 2) if so, does the alleged error appear plainly in the record, allowing an intelligent review of the issue; and 8) if so, did error occur and did it deny the defendant fundamental due process. See 4A Bacnt, Gtopomcs, Stroup, Inpiana Practice, AppeuratE ProcEpurE § 15, at 29, (1979).
In this case, steps one and two of our fundamental error analysis are met; the admission of an involuntary confession violates due process and the circumstances surrounding the confession are plainly set out in the record. An examination of the record, however, indicates the court did not err in admitting Jackson's confession. Therefore, no fundamental error occurred.
The evidence revealed that Jackson was arrested Saturday evening, May 27, 1978, but was not brought before a magistrate until Wednesday, May 31, in violation of the forty-eight hour limit of IND.CODE 18-1-11-8 (repealed by 1982 Ind.Acts P.L. 127, See. 2(b)). Because Monday was a holiday, the earliest Jackson could have been taken before a judge was Tuesday. On Tuesday morning, he was questioned by a detective and made an oral confession. When he refused to put the confession in writing he was returned to jail. Only after he had made a written confession the following day was Jackson finally taken to court. The written confession was subsequently suppressed, but the earlier oral statement was found to be voluntary and, therefore, admissible.
Jackson does not allege, nor does the record show, that his oral statement was coerced or caused by his continued detention in jail. He simply argues that had he been released from jail within the required forty-eight hours, the detective would not have had an opportunity to question him and he would not have made any statement. A confession can not be suppressed on such a basis. Instead it must be shown the statement was coerced or produced by the unlawful detention. Pawloski v. State, (1978) 269 Ind. 850, 380 N.E.2d 1230.
In these circumstances we can find no error in the admission of Jackson's oral confession. Although I would reach the same result as the majority in the present case, I believe the approach to fundamental error outlined above is more correct and in line with this district's opinion on the question in Williams v. State, (1988) Ind.App., 451 N.E.2d 687.