dissenting. As the majority opinion states, appellant is a deaf mute, who is also functionally illiterate and capable of communicating by universal sign and finger language in only a rudimentary fashion. He was indicted for aggravated murder and thereafter committed for examination to determine his mental condition and competency to stand trial. What the majority -fails to mention is the result of that examination. The report of Columbus State Hospital stated that:
“* * * [The accused] does not show any obvious *176existence of psychosis or other mental disorder which would benefit from psychiatric treatment, but he certainly would benefit from continuous education and training in a special school for the deaf.
“It was the opinion of the staff that his ability to fully comprehend the nature and the quality of charges against him are [sic] limited by his poor social and somewhat diminished intellectual capacities and mostly by his poor communication skills. Although he has made progress in learning sign language, to comprehend and respond to complex and abstract legal issues would be rather difficult for him.
“On the other hand, with the help of interpreters on a simpler level, he can communicate and could: counsel in his own defense.”
A psychologist who examined the accused reached similar conclusions,7 and testified for the defense that “* # * he’s not retarded in the sense that he is incapable of managing his own affairs of one thing or another like this * * *. I think that as far as the question about participation in his own defense, I think that my opinion would be that he does have the basic communication skills with the assistance of qualified interpreters that he would be able to understand basically what was going on and that he could participate in his defense, I’d think.”
The defense requested that the case proceed to trial, whereas the prosecution requested a commitment of the accused to Lima State Hospital to improve his communication skills.
*177Despite the fact that no evidence was presented to suggest that the accused was insane, the trial judge found that the accused was “not sane and unable to stand trial.” The .judge thereupon ordered the appellant committed to Lima State Hospital until “restored to reason or for a period of two years * * * whichever comes first.” The court also speciifically directed the authorities at Lima State Hospital to transfer the defendant to “an institution or school where his education can be continued and his communication skills enlarged * # L”
The dilemma in which the trial judge was placed is .apparent. The accused is barely able to communicate at the .most minimal level, and he would therefore be seriously handicapped in assisting at his own trial. Yet he is not insane, and the statutory provision for commitment of an .accused, R. C. 2945.38, applies only to findings of insanity.
By the terms of this statute, the accused is to be proceeded against as provided by law if he is found to be sane, and is to be forthwith committed if he is found to be mot sane. However, the statute provides no guidance for the ■disposition of this accused, who is sane, but whose competence to stand trial is in doubt because of his very limited .ability to communicate. The trial judge, confronted with this dilemma, responded by finding the accused insane and ■ordered that the authorities at Lima State Hospital give -the accused training to improve his ability to communicate.
The court apparently assumed that it had authority to commit a sane person who was not competent to stand trial.
The majority contends that this order is not a final ' appealable order, because the order is merely preliminary and collateral to the main issue of guilt and presumably that to allow an appeal would serve to delay a determination on the criminal charges. The difficulty with that position is obvious — the defendant is deprived of the substantial constitutional right to a speedy trial and is sentenced to involuntary commitment, and is denied the right of appeal provided to anyone who is civilly committed. Because *178of the criminal indictment, he is subject to commitment for two years without appeal while he remains subject to trial, and also remains subject to any extension of the period of commitment ordered by the court. On the other’hand, if an appeal were allowed, there is no likelihood of any delay in the criminal proceedings against him, because if he is found, to be sane and competent on appeal, he will then be immediately subject to further proceedings leading to his trial,, as his attorney requested.
Adopting the position of the majority, there is no remedy for this lengthy delay in trial, which is presumably intended to be for the accused’s benefit but which the accused does not seek, except habeas corpus to test his involuntary commitment for up to two years, or longer should! the trial court choose to extend it. The accused may well have a perfect defense, but he is nonetheless to be indefinitely. prevented from asserting it, by being committed to the-custody of the state. Such an order strikes me as very-final indeed, and it seems that such an indefinite commitment of an accused as insane is a final appealable order,, even though neither a finding of sanity nor a temporary commitment for observation would be appealable. See State v. Thomas (1964), 175 Ohio St. 563.
In examining the evidence before the trial court, it is. clear that the accused was sane. There was no evidence-whatsoever for a finding of insanity. Even if we assume however, that R. C. 2945.38 should apply to one who is simply-incompetent to stand trial because of his difficulties in communicating, the decision of the trial judge is difficult to justify. All the expert evidence was to the effect that the accused was competent to stand trial, though with some difficulty. Had the defense requested a continuance in order to improve the accused’s communication,. skills, I would find much more justification in the court’s action, but here the trial judge disregarded the. experts, and disregarded further the defense’s own assertion of competence and request for an immediate ‘trial. Nevertheless, the decision as to competency was clearly a difficult one, and the trial *179judge had- an independent responsibility to assure that the .accused was accorded due process, so some latitude must be recognized. However, even assuming that the trial judge could have found, in his discretion, that the accused was not competent to stand trial, the order of the trial judge here is beyond his authority and is unconstitutional under Jackson v. Indiana (1972), 406 U. S. 715.
The majority’s discussion of Jackson v. Indiana, supra, apparently concedes the need to review the decision of the trial judge. That case is almost indistinguishable from the present ease, aside from the two-year limitation upon commitment and the possibility that this accused might improve his communication skills. Yet the majority disregards the fact that the decision of the trial judge does not conform to Jackson.
The court in Jackson states, at page 738:
“We hold, consequently, that a person charged by a state with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the state must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. * * *” (Footnote omitted.)
Here, the trial court did not commit the accused to determine whether there was a substantial probability that the accused will attain the capacity to proceed to trial in the foreseeable future. He was simply committed as insane for up to two years until he regained his sanity, or more realistically, until he had been trained to communicate more effectively. This is exactly the sort of commitment struck down in Jackson, and two years is too long to be a reasonable time, particularly where it might be extended without *180apparent limit. Whether in rendering Ms difficult decision the judge intended to square Ms mandate with Jackson is immaterial, for he failed to do so.
These questions, if they arose now, would be largely controlled by R. C. 2945.381, if we assume, as did the majority, the trial court and the Jackson court, sub süentio, that an accused with severe communications difficulties can be considered as “insane” if he is not competent to stand trial. R. C. 2945.381 follows closely the holding in Jackson. Nonetheless, this accused was judicially declared insane almost two years ago. That judgment was plainly in conflict with the evidence and with the holding in Jackson and cannot stand'. I would reverse the judgment and remand the cause to the trial court for further proceedings to determine the present competency of the accused to stand trial. If the accused is still found to be incompetent, the trial court might proceed to order a temporary commitment, in conformance with Jackson and R. C. 2945.381, and determine whether there is a substantial possibility that the accused will in the foreseeable future possess the requisite mental competency to stand trial.
His report stated:
“James ‘Bobby’ Hunt is a friendly young deaf man with extremely limited language and communication skills which probably are a result of:
“1) his deafness
“2) lack of appropriate educational opportunities and
“3) a generally deprived familial environment.
“His intelligence is classified in the upper educable retarded or lower dull range by tests which do not rely directly on verbal abilities. No evidence of psychotic behavior or thinking was observed. Bobby appears to be capable of learning and of developing his communication skills under proper instructional guidance.”