concurring specially.
As a general (even absolute) proposition I believe in compliance with court orders. Conversely, I abhor disobedience to court orders. Disobedience to court orders generates disrespect for both the offender and the courts. It also subjects the offender to being held in contempt.
Feeling as I do about the respect due an order of the court, I cannot approve the ruling in this case that compliance with a court order constitutes waiver of the right to challenge the validity of that order.
In most if not all cases, where a defendant wishes to challenge the jurisdiction of the court, the defendant does not waive that right by filing the appropriate defense and then appearing in court. The majority in this case has ruled that where a party files a defense challenging the jurisdiction of a court and complies with a court order, the defense is waived. The effect of this ruling will be to require disobedience to court orders entered on short notice and I cannot agree that we should insist upon disobedience to court orders.
On the other hand, the delays experienced by the petitioner (appellee) in obtaining a hearing on his habeas petition in Tattnall Superior Court do appear, at least prima facie, to be out of the ordinary.1 We do not, however, *142have before us the record of that habeas corpus proceeding and cannot say that the habeas court erred in granting continuances at the state’s request.
Having tried unsuccessfully to obtain a hearing on his habeas petition, appellee filed an extraordinary application in the convicting court. That application precipitated the order to produce the prisoner. That application alleged in effect that appellee’s habeas petition was an inadequate remedy at law under the facts of this case. In my view, without the habeas record before it, the convicting court was not in position to determine that appellee’s habeas remedy was inadequate.
The majority opinion appears to hold sub silentio that a convicting court has continuous jurisdiction over prisoners sentenced by that court. If that be so, then the convicting court and the habeas court where the prisoner is detained have concurrent jurisdiction over him.
In the case at bar, the appellee was allowed to withdraw his 1968 plea of guilty of murder and was remanded to the custody of the Sheriff of Gordon County. The court directed the sheriff to take custody of the appellee until his case could be disposed of, and said: "Now, I don’t want to deny you the right to appeal.” The assistant attorney general asked if the filing of the notice of appeal would suspend the trial court’s order. Thereafter, on that same day insofar as appears from the transcript, the appellee pled guilty to voluntary manslaughter, was sentenced to serve six years, and was released because he had already served seven years. The record does not show that the state was represented at that guilty plea hearing either by the district attorney or the attorney general’s office. In my view, the state has a right to be represented at a guilty plea hearing, just as the defendant does.
Hopefully the appellee was not being held by the state under any other sentences. Nevertheless, the possibility that appellee was serving a concurrent sentence imposed by another court convinces me that the habeas court should have sole jurisdiction.
I therefore would find that the sentencing court lacked jurisdiction in this case and that this lack of jurisdiction has not been waived. However, the *143sentencing court has stated that appellee entered his guilty plea without appearing before the court, and that he was not asked whether his plea was voluntary, etc. Under these circumstances, it would appear that appellee is entitled to relief, albeit habeas corpus relief, and an opportunity to withdraw his plea of guilty and replead. In view of the fact that he has pled guilty to voluntary manslaughter and been resentenced, it appears that jeopardy has attached. That being so, this appeal is moot. I therefore reluctantly concur in the judgment so that this matter be put to rest.
I am authorized to state that Chief Justice Nichols joins in this special concurrence.The habeas petition was filed March 31, 1975, was first set for hearing on April 24, but was continued by three orders until July 10, 1975.