State v. Jones ( 1961 )

Mallery, J.

(dissenting) — The question of appellant’s competency became an issue in the trial when he entered a plea of insanity. The jury found he was then competent. It is undisputed that his present incompetency occurred after he elected to appeal by his counsel. He alone had the right to make this decision at the time he made it. Because of his present incompetency he cannot now alter the decision and decide to present his appeal pro se. It is true there have been very rare cases wherein the appeals were presented by the appellants pro se; but this case should not be decided upon that basis contrary to the facts herein since this appellant made no such election. If he had done so, I would then agree with the majority.

The appellant’s insanity subsequent to conviction only stays his execution. It does not abrogate his right to an appeal by counsel because that right became vested by an authoritative action of his own during his competency. Neither his counsel nor this court can question the validity of his decision not to appeal in his proper person without violating his constitutional right to be represented by counsel.

Counsel has the obligation of presenting appellant’s appeal to this court. This court should not excuse him from so doing in due course.

Let it be remembered that this is a criminal action. Counsel was duly appointed to represent the appellant by the only process known to the law.

Constitutional rights in criminal matters are peculiarly personal and even if the appellant had a guardian with authority to exercise discretion on his behalf over his property and person he could not waive a constitutional criminal right which is'never within the scope of a guardianship. The only recognized procedure for the protection of the constitutional fights of an incompetent charged with crime is the appointment of counsel for him, as was done in this case. Counsel, however, cannot waive a defendant’s constitutional rights without his knowing consent. In this case, the appellant cannot consent by reason of his present incompetency. The result is that due process requires that his constitutional rights be exercised, including the due and orderly presentment of his appeal.

There is an unrebuttable presumption that appellant’s competent decisions remain unchanged during his incompetency. No act of his is necessary to perpetuate his right to have his appeal presented by counsel. There is no procedure by which counsel can be authorized to waive this right or to change the appellant’s competent decision thereon. Appellant did not make this motion to continue his appeal and, since no sanction can be found in the law for his counsel to do so in derogation of his vested right, it should not be entertained by this court.

I would not excuse counsel from the labor of presenting the appeal. I would not speculate upon its therapeutic effect upon the appellant. I would hear the appeal and dispose of it in due course in accordance with the vested right secured by appellant’s last competent authoritative act on his own behalf. He is entitled to due process even though incompetent. I would give it to him.

I dissent.