dissenting
If the trial court had accepted Carter’s guilty plea at the time the plea agreement was tendered and the guilty plea hearing was conducted on September 8, 1993, we would have a quite different situation than is presented. Here, following the September 8,1993 hearing, the trial court took the matter of acceptance of the guilty plea under advisement pending the pre-sen-tence report and the sentencing hearing itself. It was at the sentencing hearing and before the trial court accepted the plea that Carter protested his innocence.
Until the guilty plea is accepted, it is subject to a change in the plea agreement itself, and any number of other eventualities which might affect acceptance of the plea. The contents of the pre-sentence investigation report itself might prompt the trial court to reject the plea. In any event, until the plea has been accepted by the court it is a matter in fien. It is for this reason that the law enunciated in Brooks v. State (1991) Ind.App., 577 N.E.2d 980 was then, and is now, valid authority.
It is the position of the majority here, that Bewley v. State (1991) Ind.App., 572 N.E.2d 541, trans. denied, decided some three months before Brooks, is the more persuasive authority.3 In Bewley, a unanimous panel of this court, held that the particular guilty plea there involved was not required to be set aside despite protestations of innocence. The Bewley opinion did not state specifically that prior to sentencing when the defendant protested his innocence, the trial court had already accepted the guilty plea. But that conclusion is rendered virtually inescapable in light of the fact that the two concurring members of the panel in Bewley were on the unanimous panel in Brooks and that one of those two, Judge Shields, wrote the Brooks opinion. It stretches credulity to assume that the Brooks opinion would be written so shortly after and in direct contravention of Bewley. In any event, even if the plea in Bewley had not yet been accepted, the Brooks decision is squarely on point concerning the necessity to permit withdrawal of a plea prior to acceptance of the plea.
Notwithstanding his earlier statement at the plea hearing that “I shot somebody”, which, together with other evidence before the court, provided a factual basis for the plea, the existence of that factual basis at the earlier time cannot override his subsequent protestation of innocence.4 Record at 202.
*287Prior to acceptance of the guilty plea, Carter testified at the sentencing hearing:
“Okay, from the beginning, I was telling her that I didn’t do it right, but you know, when push come (sic) to shove and I couldn’t prove that I didn’t do it, she you know what I’m saying, told me that I should sign a plea bargain right, and she’s supposed to be my lawyer, and you know what I’m saying, if I’m maintaining my innocence she’s supposed to be pushing with that for me no matter what the outcome could be.” Record at 211. (Emphasis supplied).
I am unable to read these words to say anything other than “I didn’t do it.” I am further unable to read those words as anything other than a protestation of innocence.
The fact that, as considered of paramount importance by the majority, setting aside guilty pleas might “wreak havoc upon the administration of the trial court calendar” is insufficient basis upon which to discard the basic principles which underlie the incompatibility of the acceptance of a guilty plea in the face of a protestation of innocence. Op. at 285. In the case before us, in light of the fact that the trial court had not yet accepted the plea, the court had no alternative but to set aside the guilty plea and set the murder charge for trial. Brooks, supra.
I would reverse and remand with instructions to vacate the guilty plea and for further proceedings.
. The majority also relies upon Harris v. State (1996) Ind.App., 671 N.E.2d 864, trans. denied. That case is clearly inapplicable because the trial court had accepted the defendant's plea before the sentencing hearing at which the arguable protestation of innocence took place. During the sentencing hearing the dialogue concerning innocence drew from earlier statements made by defendant to the probation officer who conducted the pre-sen-tence investigation. Our court in reaching its holding noted: "Harris did not maintain his innocence in the court room, nor did he maintain his innocence prior to the court’s acceptance of his guilty plea.” Id. at 869.
. My position with regard to protestations of innocence vis-a-vis guilty pleas does not alter my position that a defendant may enter a valid Alford "best interest” plea to a lesser offense in the face of extremely strong evidence against him which could result in a *287reasonable trier of fact concluding that defendant is guilty of the greater offense or in a maximum sentence as opposed to a bargained lesser sentence. See North Carolina v. Alford (1970) 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. The difference in the two situations is that in the “best interest” plea, the defendant acknowledges that a strong factual basis exists, and enters his plea in that factual scenario, knowingly, voluntarily and intelligently. In the true protestation of innocence case, acceptance of the plea acknowledges that despite the defendant’s specific disavowal of guilt, he has tendered such a plea. See Lockard v. State (1992) Ind.App., 600 N.E.2d 985, 990, trans. denied (Sullivan J., concurring); But cf. State v. Van Cleave (1996) Ind., 674 N.E.2d 1293 (in the context of an ineffective assistance of counsel assertion, the court observed in passing that the requirement of a factual basis for the plea "is designed to ensure that only guilty defendants plead guilty, and also that the defendant's decision to waive a jury trial is an informed and reflective one).” 674 N.E.2d at 1301. One might observe that the language reflecting the policy to allow only guilty defendants to plead guilty is used in terms of the voluntariness of the plea and does not necessarily preclude Alford or "best interest” pleas. On the other hand, one might observe that a defendant may not successfully attack a guilty plea upon grounds that a factual basis was not established unless he demonstrates prejudice in that his decision to plead guilty would have been different. State v. Eiland (2000) Ind., 723 N.E.2d 863. This would appear to dilute the above quoted language from State v. Van Cleave, supra, which seems to hold, without regard to volun-tariness, that the absence of factual basis is fundamental error.