concurring. I concur in the majority’s conclusion that we must deny Echols’s petition to reinvest the circuit court with jurisdiction to consider his request for a writ of error coram nobis. I write, however, to express my doubts that a defendant must always be diligent in raising a claim of competency to stand trial. All parties agree that a defendant may not waive his right to be tried while competent. At least one member of the United States Supreme Court has expressed that view explicitly. See Riggins v. Nevada, 504 U.S. 127, 140, 112 S.Ct 1810, 1817 (Kennedy, J., concurring) (“Although the majority is correct that this case does not require us to address the question whether a defendant may waive his right to be tried while competent, in my view a general rule permitting waiver would not withstand scrutiny under the Due Process Clause, given our holdings in Pate and Drope.”). Such a premise is well-founded and supported by the precepts of due process announced by the Supreme Court.
The Supreme Court has repeatedly held that convicting an incompetent defendant violates due process. See Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373 (1996); Medina v. California, 505 U.S. 437, 112 S.Ct. 2572 (1992); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966). The Supreme Court has further interpreted Pate, supra, to mean that the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination. See Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, n.4. (1996) (citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966)). It is true that a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution. See U.S. v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797 (1995). However, the Supreme Court has explained that it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently “waive” his right to have the court determine his capacity to stand trial. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842 (1966). Succinctly stated, “Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial. . . .” Riggins v. Nevada, 504 U.S. 127, 140, 112 S.Ct 1810, 1817 (Kennedy, J., concurring).
Clearly, Echols holds a substantive due process right to be tried while competent. The majority correctly states that under our case law due diligence is required in making an application to reinvest jurisdiction for writ of error coram nobis. Based on the Supreme Court’s interpretation of due process in the above-cited cases, I do not believe this court can legitimately dismiss Echols’s competency claim, as the majority concludes, solely for want of diligence. In fact, we recently noted in Larimore v. State, that we have allowed a trial court to issue a writ of error coram nobis for the purpose of inquiring into the defendant’s competency to stand trial when it was not raised at the time of trial. 327 Ark. 271, 938 S.W.2d 818 (1997) (citing Hydrick v. State, 104 Ark. 43, 148 S.W. 541 (1912)). Nonetheless, under the factual circumstances in this case, I agree that the writ should be denied because the circuit court made a determination that Echols was competent to stand trial and Echols failed to appeal that ruling.
After Echols was convicted and sentenced to death, he filed a pro se motion waiving all points on appeal concerning his death sentence. See Echols v. State, 321 Ark. 497, 902 S.W.2d 781 (1995). We held that a remand to the trial court was required for a determination of whether Echols was competent to abandon further litigation of his death sentence. Id. After we had remanded the case for the competency determination, Echols filed a motion to withdraw his request to waive the death'-penalty issues, and asked us to proceed with the full appeal. See Echols v. State, 323 Ark. 40, 912 S.W.2d 11 (1996). The State asked that we not recall the case until the competency determination was made, because such a determination would protect the interests of both the State and Echols in future proceedings. Id. at 41, 912 S.W.2d at 11. We agreed that the State’s argument had merit and waited to proceed with Echols’s appeal until the circuit court had certified its findings to us. Id. In the competency hearing, the circuit court made the following finding:
[I find that] Damien Echols is competent and was competent during the course of his trial and that he’s voluntarily and knowingly and intelligently withdrawn his request to waive the punishment aspect of the previous trial.
(Emphasis added.)
Echols could have appealed the ruling that he was competent during the course of the trial; but, in view of this finding, he competently chose not to do so. Thus, the issue is procedurally barred. In my view,.it is this procedural bar, rather than a waiver of his right to stand trial while competent, that now precludes Echols from obtaining a writ on this issue. Additionally, regarding his petition for a writ of error coram nobis, most of the records on which Echols now relies were available to the circuit court when it determined he was competent to stand trial. As such, Echols’s petition seeking reinvestment of jurisdiction in the circuit court to determine the writ of error coram nobis is properly denied.