Dissenting Opinion
DeBruler, J.The majority finds that appellant sought to raise a new issue in this, his first post-conviction proceeding, which issue was not previously raised in his first and direct appeal. The Court further determines that this new issue has at this point been waived. This may indeed be the case; however, I am unable to determine from the record before us where and when this waiver may have occurred. The trial court found no such waiver in denying appellant’s petition under Ind. R.P.C. 1, § 4(e), but instead denied it on the basis of res adjudícala. Obviously this finding was erroneous with regard to the one newly raised issue relating to the presence of probable cause to arrest. There is no per se rule which precludes appellant from raising a new issue in his first post-conviction proceedings which he did not raise in his direct appeal. Ayad v. State, (1970) 254 Ind. 430, 261 N.E.2d 68. Under these circumstances the appropriate action here would *590be to affirm the judgment of the trial court in all respects save one, and that the case be remanded to the trial court for a waiver hearing. Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538.
Note. — Reported at 372 N.E.2d 183.