I respectfully dissent. The appellee entered a plea of guilty in open court to attempted burglary, possessing instruments of crime and criminal conspiracy.
As stated by the majority, the proper procedure to challenge a Guilty Plea is to file a written petition with the lower court to withdraw the plea. Commonwealth v. Lantzy, 284 Pa.Super. 192, 425 A.2d 768 (1981); Commonwealth v. Cooper, 276 Pa.Super. 86, 419 A.2d 107 (1980). Unlike the majority, I find the absence of such a petition to be critical.
Pa.R.Crim.P. 320 provides that at any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.
As I interpret the record, the appellee has never withdrawn his plea of guilty either in person or through counsel. There is nothing in the record indicating an intention on the part of the appellee-defendant to the effect that his plea of guilty is to be withdrawn. True it is, the pre-sentence *267report indicated that appellee denied his guilt to the individual preparing said report. I submit that this indication made, not to the court in the form of a Petition and not through counsel, cannot be interpreted as a proper withdrawal of a plea of Guilty. It did not give the court jurisdiction over the matter as the issue has never been before the court.
The defendant-appellee is mandated to petition the court wherein he may request that his plea be withdrawn. He has the burden of demonstrating he has a fair and just reason for said withdrawal, Commonwealth v. Hall, 275 Pa.Super. 85, 418 A.2d 623 (1980). The only manner in which this can be achieved is by way of Petition and subsequent hearing. In all of our reported cases concerning withdrawal of a plea prior to sentencing, the matter came before the court by way of Petition. See Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977), Commonwealth v. Ammon, 275 Pa.Super. 324, 418 A.2d 744 (1980), Commonwealth v. Mosley, 283 Pa.Super. 28, 423 A.2d 427 (1980), and Commonwealth v. Hall, supra. There was a direct request from the individual defendants to the court to change the pleas to not guilty. In the case at bar, we have no such request.
I would hold, therefore, that the court below lacked the authority to assume that the plea of guilty was being withdrawn and directing the District Attorney to set the case for trial.
The plea of guilty is still open on the record.
I would remand for the purpose of according to the appellee the opportunity to petition the court below to withdraw his plea. In the event he thereafter exercises that privilege and it appears that the Commonwealth has not been substantially prejudiced and the court subsequently permits the withdrawal, the Commonwealth must try him within 120 days.
For the foregoing reasons, I dissent.