On Motion for Rehearing.
The State has filed a motion for rehearing which was one day after the expiration of the period when such motion could be filed. However, despite the untimeliness of the motion, because of the gravity of the issues herein involved we are reconsidering our former judgment and treat the motion as a brief for our information only.
With regard to cases cited as being opposed to our position, we are not persuaded by a specially concurring opinion in State v. Johnson, 257 S2d 654 (La. 1972) which is directly contrary to a 1971 Louisiana Supreme Court opinion (State ex rel. Jackson v. Henderson, 255 S2d 85) holding that before accepting a guilty plea the failure to inform an accused of his Constitutional rights enumerated in Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) was error per se. We are also not concerned with Federal cases decided just after Boykin, and apparently oblivious to it, and prior to the 1975 change in Rule 11 of Federal Rules of Criminal Procedure or those thereafter which appear to ignore the plain mandate of Boykin and Rule 11.
We observe that Rule 11 (c) (3) provides: “(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following: (3) that he has the right to plead not guilty or to persist in that plea if it has .already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.” As Moore’s treatise points out: “Subdivisions (c) (3) and (4) [added in 1975] specify the constitutional rights that the defendant waives by a plea of guilty or nolo contendere. These subdivisions are designed to satisfy the requirements of understanding waiver set forth in Boykin v. Alabama, [supra].” 8 Moore’s Federal Practice, § 11.01 (4), p. 11-10. As is stated more succinctly in this same work: “Rule 11 (c) (3) represents a codification of all those warnings constitutionally required by Boykin v. Alabama.” 8 Moore’s Federal Practice, § 11.02 (1), p. 11-27.
Therefore, we reach the principal source of our concern—a recent *542Georgia Supreme Court case, an authority which was not cited by the State. That case, Goodman v. Davis, 249 Ga. 11 (287 SE2d 26), holds that the failure to inform an accused of one of the three constitutional rights herein involved (the accused was informed of the other two) was not error. After pointing out that the accused did not allege he had been in any way prejudiced by the failure of the trial court to advise him of his right to remain silent, the Supreme Court held: “We decline to adopt a rule which would demand that failure to advise an accused of his right against self-incrimination invalidates a guilty plea in a case where the record reflects that the central considerations of Boykin have otherwise been met.” The Court then held that failing to advise the accused of his right against self-incrimination was “under the facts of this case, harmless beyond a reasonable doubt.”
The Court, nevertheless, added this caveat: “We are careful to point out, however, that our opinion should not be construed as approving anything less than a scrupulous inquiry by the trial court into defendant’s understanding of the charges against him and knowledge of the consequences of his guilty plea. The record should clearly demonstrate that the guilty plea was knowingly and voluntarily made. These goals can best be facilitated by advising the defendant of the constitutional rights which are waived by pleading guilty and by recording the dialogue between the defendant and the trial court to illustrate that the defendant understands the significance of the rights he is waiving.”
Having thus been warned in our endeavor to pass safely by the Scylla of Boykin, supra, and the Charybdis of Goodman, supra, it is understandable that we pause to reassess our former stand. Nevertheless, the Georgia Supreme Court did not countenance the omission of all three constitutional rights as was done here. Hence, we reaffirm our holding that the total failure to inform the accused of any of the three constitutional rights set forth in Boykin is such harmful error as to require that the accused be permitted to withdraw his plea. As stated in Brady v. United States, 397 U. S. 742, 748 (25 LE2d 747, 90 SC 1463), “waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”
Judgment adhered to.