Concurring Opinion by
Flood, J.:I concur in certifying this case to the Supreme Court, but disagree with some of the implications of Principles One, Three and Four in the guides for practice to the trial courts.
*446As I read tlie decisions of the' United States Supreme Court, the presumption of regularity is not a sufficient basis for holding that a defendant has waived his constitutional right to counsel where there is no evidence of waiver in the record. Failure to request counsel does not in itself amount to a waiver. Further, while the petitioner must prove indigency to obtain relief, I doubt that failure to aver it in his petition is a sufficient ground to bar him from a hearing on the merits of the petition.
In Carnley v. Cochran, 369 U.S. 506 (1962), involving a serious but noncapital felony tried in a Florida State court, the Supreme Court said: “[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. . . .
“However, the Florida Supreme Court may not have meant that the constitutional right to counsel depends upon a formal request. The court may have meant that from the very fact that no counsel was present, it would be assumed that the trial judge made an offer of counsel which the petitioner declined. Or, it may have meant that it would assume simply that petitioner knew of his right to counsel and was willing to fore-go it. Of course, the validity of such presumptions is immediately called in question because the accused has no way of protecting against them during his trial except by requesting counsel — a formality upon which we have just said his right may not be made to depend. Nor is it an answer to say that he may counter such presumptions on collateral attack by showing- — if he can — that he had not in fact agreed, or been willing, to be tried without counsel. To cast such a burden on the, accused is wholly at war with the standard of proof of waiver of the right to counsel which we laid down in Johnson v. Zerbst, 304 U.S. 458, 464, 465, 82 L. ed. 1461, 1466, 1467 . . .
*447“However, [W]e recognized in Rice v. Olson [324 U.S. 786 (1945)] that, although the Fourteenth Amendment would not countenance any presumption pf waiver from the appearance of the accused without counsel and the silence of the record as to a request, the entry of the guilty plea might have raised a fact issue as. to whether the accused did not intelligently and understandingly waive his constitutional right. We held that a hearing was required since the facts were in dispute. In the present case, however, there was no guilty plea, and the return to the writ does not allege an affirmative waiver. Therefore, there is no disputed fact question requiring a hearing. Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which shows, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”
This case should be remanded for a hearing as to whether the petitioner was indigent at the time of the trial and, if so, whether he understandingly and intelligently waived his right to counsel.
Watkins and Montgomery, JJ., join in this opinion.