Appellant, Gary Moore, was initially convicted of possession of marijuana with intent to deliver and possession of drug paraphernalia. We reversed and remanded that conviction. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988).
On retrial, Moore was convicted of possession of marijuana and sentenced to imprisonment in the Arkansas Department of Correction for six years and three months and fined $5,000. He was also convicted of possession of drug paraphernalia and sentenced to six months imprisonment in the Arkansas Department of Correction and fined $500.
Moore appeals both of his convictions and asserts that 1) the trial court erred in overruling his motion to strike a statement that he made to police officers, and 2) the trial court erred in failing to hold a “Denno” hearing. We agree that the trial court erred in failing to hold a “Denno” hearing; therefore, we will initially discuss Moore’s second point of error.
Moore claims that his motion to strike his statement, based *3on his allegation that the Miranda rights form did not apprise him that he had a right to a lawyer free of charge or at no cost to him and the arresting officers did not inform him of those particular rights, was sufficient to raise the issue of the admissibility of his “confession” and that the trial court’s subsequent failure to hold a “Denno” hearing was a violation of Ark. Code Ann. § 16-89-107(b)(1) (1987).
In Jackson v. Denno, 378 U.S. 368 (1964), the principle was established that a criminal defendant is entitled to a hearing regarding the voluntariness of any confession before it can be admitted into evidence. The basis for this right is found in the due process concern involving self-incrimination, as expressed in the fifth and fourteenth amendments. See also Harris v. White, 745 F.2d 523 (Mo. 1984).
The court in Jackson v. Denno, supra, that:
It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. [Citations omitted.]
Arkansas has incorporated the concerns and requirements elicited in Jackson v. Denno in section 16-89-107(b) (1), which addresses the trial of issues of fact and provides as follows:
Issues of fact shall be tried by a jury. However, the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury, and it shall be the court’s duty before admitting the confession *4into evidence to determine by a preponderance of the evidence that the confession has been made voluntarily.
Although there appears to be some disagreement as to whether Moore’s statement is to be viewed as an exculpatory statement or a confession, the distinction in this case is of little consequence because we found in DuBois v. State, 258 Ark. 459, 527 S.W.2d 595 (1975), that when a defendant’s in-custody statements are not confessions but exculpatory statements, on appeal they are treated as confessions in accordance with Miranda requirements.
Additionally, the presumption is that an in-custody statement is involuntary, and the burden is upon the State to show otherwise. Bucy v. State, 271 Ark. 768, 610 S.W.2d 576 (1981) (citing Hileman v. State, 259 Ark. 567, 535 S.W.2d 56 (1976)). A factor to be considered in determining the voluntariness of a waiver of the right to remain silent is the advice or lack of advice of constitutional rights. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986); Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).
As a result, Moore’s filing a motion to strike his statement, with a certificate of service to the prosecuting attorney, sufficiently raised the issue of the voluntariness of his in-custody statement to require the court to hear the evidence concerning the admissibility and voluntariness of the statement out of the presence of the jury. The language of our code is clear that when the issue of the admissibility of a confession is raised by the defendant, “it shall be the court’s duty before admitting the confession into evidence to determine. . . that the confession has been made voluntarily.”
In addition, A.R.Cr.P. Rule 20.3(a) provides “At the omnibus hearing, the trial court on its own initiative shall: . . . (iv) make rulings on any motions ... or other requests then pending . . . .” In this instance, the trial court conducted an omnibus hearing on March 17,1989, yet failed to rule on Moore’s motion to strike his confession which was pending at the time.
For these reasons, we must agree with Moore that the trial court’s failure to conduct an evidentiary hearing on his motion to strike was error. However, this failure does not in and of *5itself entitle Moore to a new trial. Instead, we remand to the trial court with instructions to hold a hearing and rule on the issue of the voluntariness of Moore’s statement. See Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980); Jackson v. Denno, supra. A new trial should be ordered only if the trial court finds the statement to have been involuntary. Id.
Due to the fact that Moore will now receive the required “Denno” hearing, we need not discuss his first point of error.
No error being shown except with respect to the required finding of voluntariness, the case is remanded for further proceedings upon that issue.
Glaze, J., concurs.
Hays, J., dissents.