Appellant was convicted of burglary, aggravated assault, aggravated sodomy and rape. On appeal he contends the trial court erred by allowing appellant’s written admission into evidence, and by forcing appellant, over timely objection, to stand trial wearing prison clothing.
As appellant’s enumeration relating to prison clothing is dispositive of this case, we will address only that issue. In this regard, it was stipulated that appellant’s only civilian clothing was taken from him at the time of his arrest and sent to the crime laboratory. His clothing had not been returned to him at the time of trial.
Appellant argues that forcing a defendant to wear prison garb is a denial of the presumption of innocence and a violation of his due process rights under the Fourteenth Amendment to the Constitution of the United States (Code Ann. § 1-815 et seq.). We agree.
*359The Georgia courts have consistently recognized a criminal defendant’s right to appear at trial in civilian clothing. Timmons v. State, 223 Ga. 450 (1) (156 SE2d 68) (1967); Sharpe v. State, 119 Ga. App. 222 (1) (166 SE2d 645) (1969); Whittington v. State, 155 Ga. App. 667 (1) (272 SE2d 532) (1980). However, Georgia cases dealing with such a right involve either a waiver of the right, Timmons, Sharpe, supra, or cases in which the state presented evidence to show that the prison garb being worn bore no distinctive marks and was not otherwise different than normal civilian attire. Whittington, supra; Hayslip v. State, 154 Ga. App. 835 (1) (270 SE2d 61) (1980). Thus, the Georgia cases shed no light on the issue confronting us here. However, the same issue has been addressed by the federal courts.
In Dennis v. Dees, 278 FSupp. 354, 359 (6) (1968) the court held: “As declared in Eaddy v. People, 115 Colo. 488, 174 P.2d 717, ‘the presumption of innocence requires the garb of innocence.’ To force a defendant, against his will, to stand trial before a jury dressed in striped prison garb is the very antithesis of the ‘garb of innocence’ and hence is... a deprivation of the due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States (Code Ann. § 1-815 et seq.). For this reason, even if for no other... a writ of habeas corpus should be granted.” (Emphasis supplied.)
In Hernandez v. Beto, 443 F2d 634, 636-637 (3) (5th Cir. 1971) it was held: “We conclude that trying Hernandez in his prison clothing infringed a fundamental right — the presumption of innocence.”
Since Georgia recognizes the right of a criminal defendant to appear before the jury in civilian clothing and the federal courts have held that a violation of that right is a deprivation of due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States (Code Ann. § 1-815 et seq.), it was error to overrule appellant’s timely objection to being forced to appear for trial in prison clothing. The state’s argument that appellant has not met his burden of showing error is without merit, for this court has held: “But, ‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt,’ and the burden for the showing rests with the prosecution.” (Emphasis supplied.) LaRue v. State, 137 Ga. App. 762, 764 (2) (224 SE2d 837) (1976). See also Chapman v. California, 386 U. S. 18, 24 (87 SC 824, 17 LE2d 705). Since the state made no attempt to meet this burden by the presentation of evidence or otherwise, and we have no way of determining what effect appellant’s appearance in prison garb had on the minds of the jurors, we cannot say that the error was harmless beyond a reasonable doubt.
Judgment reversed.
On Motion for Rehearing, this became a whole court case and I am authorized to state that: Shulman, C. J, *360Deem, P. J., Quillian, P. J., and Birdsong, J., concur. McMurray, P. J., Banke, Car ley and Pope, JJ., dissent. Decided November 28, 1983 Rehearing denied December 20, 1983 Jay W. Bouldin, for appellant. Robert E. Keller, District Attorney, David C. Marshall, Assistant District Attorney, for appellee.