Dissenting:
I respectfully dissent. The majority finds counsel articulated a valid and reasonable trial strategy for failing to object to the trial judge’s omission of a not guilty verdict in submitting the case to the jury. In my opinion, counsel can never have a strategic justification for failing to ensure a not guilty verdict is submitted to the jury. Furthermore, I would hold failure to submit a not guilty verdict form to the jury is a fundamental error which violates a defendant’s sixth and fourteenth amendment rights to have a jury determine guilt beyond a reason*640able doubt. Such a fundamental error requires reversal, even absent an express showing of prejudice by the defendant.
The right to have a jury determine whether a defendant is guilty beyond a reasonable doubt is one of the most basic tenants of our system of justice. Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450, 2457-2458, 61 L.E.2d 39 (1979). As the Seventh Circuit has stated, “This right, emanating from the criminal defendant’s constitutional right to trial by jury, is neither depleted nor diminished by what otherwise might be considered the conclusive or compelling nature of the evidence against him.” United States v. England, 347 F.2d 425, 430 (7th Cir.1965) (footnotes omitted). A jury is required to presume that an accused is innocent until he is proven guilty. A defendant’s admission of the underlying facts of the crime does not necessarily represent an admission by the defendant that he acted criminally or culpably. In fact, the defendant in this case plead not guilty, thereby placing the burden on the" state to prove each and every element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-364, 90 S.Ct. 1068, 1071-1072, 25 L.Ed.2d 368 (1970).
The state carries this burden regardless of which particular elements are expressly controverted by a defendant. “[U]nder our system of jurisprudence, it is technically possible for a criminal defendant to enter a plea of not guilty, introduce little or no evidence in his own defense, and rely exclusively on his presumption of innocence and the possible inability of the prosecution to prove his guilt beyond a reasonable doubt. Thereupon, guilt is determined by the jury, not the Court.” United States v. Franzen, 688 F.2d 1181, 1188 (7th Cir.1982) (Cudahy, Circuit Judge dissenting) (citing United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 410, 67 S.Ct. 775, 783, 91 L.Ed. 973 (1946)). Under our system of justice, it is possible for the state to fail to prove beyond a reasonable doubt every fact necessary to constitute the elements of the crime charged even though a defendant has admitted the underlying facts of the crime. Therefore, in order for a trial to fulfill the requirements of fundamental fairness and of the Constitution, a jury must always have the option of finding a criminal defendant not guilty. In the instant case, the jury was actually prevented from finding the defendant not guilty, since the verdict form only gave the jury *641a choice between finding the defendant guilty of armed robbery or guilty of common law robbery.
In Commonwealth v. Edwards, 394 Pa. 335, 147 A.2d 313 (1959), Pennsylvania Supreme Court addressed the same issue this Court faces today. In Edwards, the defendant admitted a slaying, yet the Pennsylvania Court held that the trial court’s failure to include a not guilty verdict with the other five verdict forms given to the jury deprived the accused of a fair trial. The court reasoned:
To say that a judge need not charge on an indispensable requirement in the law because the defendant is assuredly guilty is to hang that accused first and indict him after-wards. It is the trial and the trial alone which decides whether a defendant is assuredly guilty. The presumption of innocence is not merely a papier-mache figure for dramatic display in the courtroom; it is a reality without which trials become mere playacting with the verdict residing in the judge’s pocket before the jury is sworn. Even if, in a hypothetical case, the evidence of guilty piles as high as Mt. Everest on Matterhorn, even if the District Attorney conscientiously believes the defendant to be as guilty as Cain, and no matter with what certainty the Judge view the culpability of the accused at the bar, the defendant is still entitled to all the safeguards of a fair trial as announced in the Constitution and the law of the land.
Id. at 313-314. See also Braley v. Gladden, 403 F.2d 858 (9th Cir.1968)4; State v. Knorr, 186 Ariz. 300, 921 P.2d 703 (Ct.App.1996) (finding failure to submit a not guilty verdict deprived defendant of a fair trial even though, based on the evidence, it was extremely unlikely that the jury would have acquitted the defendant on the charge); People v. Stockwell, 52 Mich.App. 394, 217 N.W.2d 413 (1974) (a jury instruction which authorized verdicts of guilty' of first or second-degree murder or verdict of not guilty by reason of insanity, but which omitted authorization of general verdict of not guilty, *642was reversibly erroneous, though it may have been occasioned by defense counsel’s choice not to have the trial court instruct on possibility of general verdict of not guilty and though there was no specific objection to the erroneous instruction).
Therefore, I would hold the trial court’s failure to submit a not guilty verdict to the jury denied Solomon a fair trial by infringing on his constitutional right to a have a jury determine his guilt beyond a reasonable doubt. As this error goes to the fundamental fairness of a criminal trial, guaranteed by the Constitution, counsel can never have a valid trial strategy for failing to object to such an error and prejudice should be presumed.5
For the foregoing reasons, I would AFFIRM as modified the PCR court’s ruling.
. The defendant in Bradley did not denying murdering the victim, but instead argued he was highly intoxicated and, alternatively, he was legally insane at the time. The Bradley Court held that oversight in not furnishing jury a not guilty form along with opposite form constituted severely adverse comment by trial judge and even though unintended was so significantly irregular as to require a new trial.
. I would overrule State v. Somerset, 276 S.C. 220, 277 S.E.2d 593 (1981) to the extent it is inconsistent.