David Roy THOMAS, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-86-92.
Court of Criminal Appeals of Oklahoma.
July 14, 1989.
777 P.2d 399
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED WITH DIRECTIONS.
OPALA, V.C.J., and LAVENDER, DOOLIN аnd ALMA WILSON, JJ., concur.
SIMMS, Justice, with whom HARGRAVE, Chief Justice joins, dissenting:
I would deny certiorari which would affirm the trial court‘s award.
HODGES, Justice, with whom SUMMERS, Justiсe joins, concurring in part, dissenting in part:
The amount of the attorney fee should be decided by this Court. I dissent to its remand to the trial court.
Mark Barrett, Asst. Appellate Public Defender, Norman, for appellant.
Robert H. Henry, Atty. Gen., M. Cаroline Emerson, Asst. Atty. Gen., Oklahoma City, Okl., for appellee.
LANE, Vice Presiding Judge:
Appellant, David Roy Thomas, was convicted of four counts of Manslaughter, First Degree (
A recitation of the facts underlying Appellant‘s conviction is unnecessary insofar as the action taken today is not dependant on the circumstances of the crime.
Immediately prior to trial, Appellant properly made application to the trial court requesting examination of his current competеncy to stand trial. After a hearing in accordance with
After the examination, the treating expеrt, William R. Ford, expressed his opinion that Appellant was competent to stand trial in a letter to the trial сourt. No post-examination hearing was requested by appellant nor was any such hearing conducted by the trial court.
When the trial court failed to conduct the mandatory post-examination hearing, serious errоr resulted. This part of the competency proceedings is not an optional requirement nor is it one whiсh a defendant may waive by his failure to request.
We have previously held that although the post-examination hearing is absolutely required by the statutes concerning competency proceedings, failure to conduct such a hearing is not necessarily a fatal error incapable of cure. See Anderson v. State, 765 P.2d 1232 (Okl. Cr. 1988); Johnson v. State, 761 P.2d 484 (Okl. Cr. 1988); Rowell v. State, 699 P.2d 651 (Okl. Cr. 1985). Contra Kelly v. State, 735 P.2d 566 (Okl. Cr. 1987); Scott v. State, 730 P.2d 7 (Okl. Cr. 1986).
In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Supreme Court сonsidered the constitutionality of a conviction rendered after a defendant raised the issue of cоmpetency but the trial court refused to act on the issue. The Court held that because it would be a violatiоn of due process to convict a person incompetent to stand trial, a defendant has an absоlute right to require the trial court to evaluate his current ability to stand trial. Id. at 385, 86 S.Ct. at 842. The Court indicated in its opinion that if a “meaningful hearing” on the competency question could be undertaken at a later time, then
Based on the procedures described in Pate, when faced with the failure of a trial court to рroperly conduct hearings this Court has undertaken the practice of remanding the case back to thе trial court for evidentiary hearing. This hearing must address two questions: [1] Whether or not it is feasible at this time to conduct аn appropriate post-examination competency hearing, and if that question is answered affirmаtively, [2] was the defendant competent to stand trial.
It must be emphasized that the trial court should not substitute this remediаl proceeding as an alternative for the mandatory hearing, which must be held immediately subsequent to the cоmpetency evaluation and prior to the resumption of criminal proceedings. We recognize thе difficulties involved with making such a determination after even a short lapse of time. The longer the intervening time рeriod, the more difficult the task becomes. Pate, 383 U.S. at 387, 86 S.Ct. at 843.
In the present case, we entered our order on February 14, 1989, rеmanding the cause to the trial court for the evidentiary hearing described above. On March 30, 1989, the trial court dеtermined that “it is not feasible to conduct a competency determination at this time due to the time laрse and the appellant‘s right to a jury determination of his competency.”1 Because Appellant did not receive and cannot now be given a proper post-examination competency hearing, we must reverse Appellant‘s judgment and sentence and remand for a new trial.
BRETT, BUSSEY and LUMPKIN, JJ., concur.
PARKS, P.J., specially concurs.
PARKS, Presiding Judge, specially concurring:
While I concur in the majority opinion, I continue to adhere to the views set forth in my separate opinion in Anderson v. State, 765 P.2d 1232, 1234 (Okla.Crim.App.1988) (Parks, J., Dissenting), that a plain reading оf the applicable statutory scheme demonstrates that the Legislature did not intend that the post-examinаtion competency hearing be held months or years after trial. Here, the majority gives meaningful consideration to the question of whether it is feasible to conduct a post-examination competency hearing after trial. But see Anderson, 765 P.2d at 1233 (where the “feasibility” issue was not addressed by the majority).