(specially concurring in part; dissenting in part).
SPECIAL CONCURRENCE
Four doctors advised our court system, essentially, that Whitney was chronically mentally ill and delusional when the offense occurred. Later, Whitney being acutely psychotic and suffering from chronic, differentiated schizophrenia, was not in a free and open mental state to enter any type of plea. See transcript, infra. These four doctors were Doctors Somepalli, Dr. Wilson, Dr. Manlove, and Dr. Lord. Simply put, Whitney could not enter a knowing, intelligent and voluntary plea. See, State v. Lashwood, 384 N.W.2d 319, 321 (S.D.1986). It is the totality of the factual circumstances which must be considered to fulfill a determination if the plea was knowing, intelligent, and voluntary. The transcript reveals the following colloquy:
THE DEFENDANT: I want to accept the plea bargain if I can get a reasonable sentence out of it, you know, because like I said, I wasn’t even trying to do anything to my kid, but I’m finding out this now, what I did, I didn’t know then.
THE COURT: We have talked about this before, your defense of being mentally ill at the time, and based upon what the doctor said, it sounds like a fairly good defense, that you were mentally ill at the time. Virtually every psychiatrist that looked at you and examined you has said, that at least at the time they saw you you were mentally ill to the extent that you were not able to assist your lawyer and you were not able to appreciate the proceedings and understand the proceedings enough to be of assistance to your lawyer,1 (emphasis supplied mine). So that means to me that there is at least a reasonable indication that you have some defense here and that the jury, if they believed it and you were mentally ill to the degree that’s required, they could say, well, we are going to find that he’s guilty by reason of mental illness, and he didn’t know what he was doing at the time. If he did, he would have made sure that his baby got enough food and water and nutrients. Do you follow me?
THE DEFENDANT: Yeah.
It is the position of this Justice that the GBMI statutes in this state are unconstitutional and that is an additional reason why, in my opinion, Whitney cannot be adjudicated to be “guilty but mentally ill.” State v. Baker, 440 N.W.2d 284, 293 (S.D.1989) (Henderson, J., dissenting); see also, Robinson v. Solem, 432 N.W.2d 246, 252-58 (S.D.1988) (Henderson, J., dissenting); State v. Robinson, 399 N.W.2d 324, 327-30 (S.D.1987) (Henderson, J., dissenting). Our State Legislature has never seen fit to repair these statutes. Notice, when reading these dissents, the statement in the majority opinion as follows: “Whitney was not even guaranteed that he would receive psychiatric care while incarcerated.”
DISSENTING IN PART
I dissent, in part, to that which is the ultimate decision of this Court which is: “We reverse the conviction2 and remand so that Whitney can be thoroughly evaluated by a psychiatrist to determine whether he could distinguish right from wrong at the time of the alleged abuse.” In my opinion, this case should be remanded to entirely dismiss the proceedings below. Whitney *274should not have to go through another trial and the State of South Dakota should not have the right to now try to bolster its case with any new psychiatrist or any new evaluation. The State could not prove a case before and it should not be given a second bite of the apple to try to establish a case now. It is bound by its previous testimony. Any evidence would be stale and another psychiatrist could only form an opinion based upon what these four doctors previously expressed. Such evidence would be cumulative and lack objectivity. Whitney should not be put through more pain and anguish. He needs mental help, not criminal prosecution again. Would the courts of South Dakota now require Whitney, under the state of this record, to prove that he is insane — after he is charged again? See, federal decisions cited in my special writing in Baker, supra. In my opinion, this onus of proof would be a miscarriage of justice under these facts.
. At this juncture, the arraignment and plea should have terminated.
. With that conclusion, I agree.