Dissenting Opinion
Staton, P.J.— I dissent to the majority’s disposition of Issue Three. The trial court should have held a competency hearing before determining that Richardson was competent. The proper question for our review is not abuse of discretion, a question of fact. It is whether there is evidence of a reasonable doubt of Richardson’s competency in the record to initiate a competency hearing, a question of law. I would remand this cause to the trial court for a competency hearing to assure a fair trial.
I.
Abuse of Discretion
A competency hearing is not discretionary under IC 1971, 35-5-3.1-1 (Burns Code Ed.) It is mandatory "[w]hen at any time before the final submission of any criminal cause to the court or jury trying the same, the court, either from its own knowledge or upon the suggestion of any person, has reasonable ground for believing the defendant to be insane....”
When a trial court fails to order a competency hearing, our review is limited to the presence or absence of reasonable grounds for ordering a competency hearing — not an abuse of discretion. Any exercise of discretion on the part of the trial court must come after the competency hearing when the de*224termination, of the defendant’s competency is made. At the competency hearing, the trial court weighs the evidence, assesses the eredibilty of the witnesses, and while using its discretion, it makes a determination as to competency. Otherwise, the statute is meaningless.
If a trial court could exercise its discretion in determining the competency of a defendant without a hearing after the suggestion of any person (a psychiatrist in Richardson’s case), the statute would be an absurdity.
If there is evidence of a reasonable doubt, the reasonable doubt creates the need for a competency hearing. It does not create the need for an immediate determination of competency without a hearing. The trial court’s discretion is exercised at the competency hearing — not upon the reasonable doubt which is a matter of law by statute.
“Under the rule of Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, a due process evidentiary hearing is constitutionally compelled at any time that there is ‘substantial evidence’ that the defendant may be mentally incompetent to stand trial. ‘Substantial evidence’ is a term of art. ‘Evidence’ encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports, that have been filed with the court. Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competency to stand trial. Once there is such evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court in applying Pate’s substantial evidence test is not to determine the ultimate issue: Is the defendant competent to stand trial? It [sic] sole function is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competency. At any time that such evidence appears, the trial court sua sponte must order an evidentiary hearing on the competency issue. It is only after the evidentiary hearing, applying the usual rules appropriate to trial, that the court decides the issue of competency of the defendant to stand trial.” Moore v. United States (9th Cir. 1972), 464 F.2d 663, 666.
*225The question before this Court is whether there was sufficient evidence before the trial court to raise a reasonable ground to doubt Richardson’s competency. This is a question of law — not a question of fact. As Justice Prentice pointed out in his dissenting opinion in Harris v. State (1974), 262 Ind. 208, 314 N.E.2d 45, 51:
“I do not agree with the test applied by the majority opinion with respect to whether to hold a competency hearing. The issue before us on appeal is not whether there was ‘sufficient evidence [for the trial judge] to find that the defendant had sufficient comprehension to stand trial,’ but rather whether the trial court had before it ‘indicators sufficient to establish reasonable grounds to believe the defendant to be legally incompetent.’ Evans v. State (1973), [261] Ind. [148], 300 N.E.2d 882; Tinsley v. State (1973), [260] Ind. [577], 298 N.E.2d 429. (footnote omitted)
“So long as the evidence before the court raises a ‘bona fide doubt’ as to a defendant’s competence to stand trial, the judge on his own motion must conduct a competency hearing pursuant to Burns Ind. Stat. Ann. § 9-1706a, IC 35-5-3-2. Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815.
“The trial judge, therefore, has much less discretion with respect to refusing to grant a competency hearing than he does in determining competency at a hearing. If this Court determines that there were sufficient indicators to establish a bona fide doubt as to defendant’s competency, the failure to grant a competency hearing is error.”.
Also, the majority’s opinion’s reliance on Brown v. State (1976), 264 Ind. 484, 346 N.E.2d 559 and on Harris v. State, supra, as establishing an abuse of discretion standard of appellate review is misplaced. There was no mention of an abuse of discretion standard in Brown v. State, supra. Additionally, it was clear in Brown that there was no evidence before the trial court that the defendant was incompetent to stand trial. Clearly the trial court was not required to hold the competency hearing required by IC 1971, 35-5-3.1-1 in that case. Although Justice Arterburn, joined by Justice Givan, in Harris v. State, supra, concluded the review of the appellate court was for an *226abuse of discretion, Harris is not a decisive opinion. Justice DeBruler only concurred in result and Justices Prentice and Hunter dissented on the ground that the majority opinion applied the wrong test regarding the issue of whether the trial judge should have held a competency hearing.
II.
Reasonable Ground to Believe
Richardson had raised the defense of insanity. The question of his sanity at the time of the offense is a question of fact. Wilson v. State (1975), 263 Ind. 469, 333 N.E.2d 755; Blake v. State (1975), 262 Ind. 659, 323 N.E.2d 227; Stamper v. State (1973), 260 Ind. 211, 294 N.E.2d 609. After the State and Richardson had rested, the trial court called Dr. Dian and Dr. Hogle to testify. They were psychiatrists who had been appointed by the trial court to examine Richardson. Dr. Dian testified that in his opinion Richardson understood the current proceedings and was capable of aiding in his defense. Dr. Hogle then testified as follows:
“Q. Do you have an opinion as to his present competency to stand trial ?
“A. Yes, the difference is [sic] that I noted in Mr. Richardson, between the initial examination in September of ’73 and the present time were so striking that I in fact did not recognize him and identified him to be sure that I was talking with the same man, in addition to asking his name, I asked his age which coincided with the age he had given me before. I also, without giving him any leading questions, asked him as to what charge he was standing trial on and since the answers to these three (3) questions coincided and I also asked him if he recalled seeing me and in a kind of way he said he did, and I did best conclude that I was examining the same individual. He however looked strikingly different when I examined him previously, he was neat, clean and reasonably well dressed, as well as one is possible out of the Lake County Jail. He was coherent, relevant and when I saw him today he was almost wholly preoccupied with how it was that people had and were misleading him. This preoccupation was so severe and so constant that I was able to obtain no information regarding *227his past. And was unable to. reach any conclusion as to what his mental status had been in the past. And it’s my opinion that at the time Mr. Richardson is incompetent to stand trial. . '
“Q. Do you have an opinion as to the defendants sanity today ?
“A. Yes, according to — of course, there are kind of two (2) definitions from a psychiatric standpoint. I believe that ■Mr. Richardson is today psychotic and I believe that from a legal standpoint that he is insane.”
Later, when Dr. Hogle was examined by the defense, he reiterated his opinion:
“Q. You had the opportunity to see him an hour and a half ago, the immediate time and place and that is your opinion?
“A. That he is, at .this time, I believe, at this time to be insane.”
The testimony of Dr. Hogle was clearly sufficient to raise a reasonable , ground to doubt Richardson’s competence to stand trial. The trial court was also aware that Richardson had been previously found incompetent to stand trial in October 1973 and had been confined in Norman Beatty Memorial Hospital. Later the hospital, not the court, certified in January, 1974 that. Richardson was competent to stand trial. This certification was more than six months before trial.
" Í do not agree with the majority’s conclusion that it was for the trial court to determine the credibility of the testimony of Dr. Hogle. This is a determination that must be made at the competency hearing. The fact that Dr. Hogle’s testimony was directly contradicted by the testimony of Dr. Dian cannot negate the “reasonable ground to doubt” created by Dr. Hogle’s testimony. Once a, reasonable ground, to doubt is shown to exist by some evidence, the trial court may not weigh conflicting evidence nor judge the credibility of the witnesses to dispel this doubt. See Moore v. United States, supra.
The testimony of Dr. Hogle raised a reasonable ground to doubt Richardson’s competency to stand trial and when this *228doubt arose, the trial court was mandated by IC 1971, 35-5-3.1-1 to hold a hearing to determine Richardson’s competence.
I would remand this cause to the trial court for a separate, independent, and objective determination of Richardson’s competency to stand trial. See Evans v. State (1973), 261 Ind. 148, 300 N.E.2d 882; Tinsley v. State (1973), 260 Ind. 577, 298 N.E.2d 429; Schmidt v. State (1974), 159 Ind. App. 412, 307 N.E.2d 484.
Note. — Reported at 351 N.E.2d 904.