(dissenting).
I agree that the majority opinion authored by Judge Hendry reflects adequate authority to support his opinion. However, I think that this should not be the law.
Defendant, at the time of sentencing, has already been adjudicated guilty and if he should desire to take the benefit and privilege of a presentence investigative report, pursuant to the applicable Rules of Criminal Procedure, it should be incumbent upon him to make such a request to the trial court or, in some manner, inform the trial court that he is a first felony offender.
To me it seems ridiculous to say that counsel and the defendant can stand mute and automatically secure a reversal. It is to be remembered at this juncture that the presumption of innocence has vanished and the defendant is seeking a privilege accorded him by the rules. I would adopt the construction of the rule as authored by Judge Spector in his dissent in Harden v. State, supra.
Therefore, I respectfully dissent from the majority opinion.