(dissenting). The issue in this case is whether counsel for a defendant charged with a crime may waive the defendant's right to an evidentiary hearing on the question of the defendant's competency to proceed. Because I conclude that only the defendant can waive that right, I respectfully dissent.
Section 971.14, Stats., requires a competency examination and a report by the examiner or examiners to the court whenever there is reason to doubt a criminal defendant's competency to proceed. Section 971.14(4)(b), Stats., provides in part:
If the district attorney, the defendant and defense counsel waive their respective opportunities to present other evidence on the issue, the court shall promptly determine the defendant's In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. ...
In an earlier form, sec. 971.14(4), Stats. (1971), provided: ”[I]f neither the district attorney nor the counsel for the defendant contest the finding of the report [as to defendant's competency] . . . the court may make the determination on the basis of such report." However, in State ex rel. Matalik v. Schubert, 57 Wis. 2d 315, 326, 204 N.W.2d 13, 18 (1973), the court held that this procedure violated the defendant's right to due process because it "ignores any objections which the party *673alleged to be incompetent may have to the medical report."
Section 971.14(4), Stats. (1971), was amended by ch. 153, Laws of 1975, to address the concern of the Matalik court by giving the defendant, as well as defendant's counsel, the right to contest the finding as to competency.1 Section 971.14, Stats., was then repealed and recreated by sec. 4, ch. 367, Laws of 1981. This Act was the product of the Judicial Council's Insanity Defense Committee. See Fosdal and Fullin, Wisconsin's New Competency to Stand Trial Statute, WlS. B. BULL., October 1982, at 10.
The minutes of the Insanity Defense Committee show that the committee appreciated that the defendant and his or her counsel might disagree as to whether the defendant was competent to proceed. The February 20, 1981 minutes of the committee proceedings contain the following discussion:
In reviewing Section 12 [sec. 971.14(4)], the committee focussed upon whether the defendant should have a right to a hearing on the competency report... .
Professor Dickey stated that defendants do not usually know that they have a right to a hearing on the competency report. Often the lawyer would prefer that his client stay at Central State for awhile in the hopes that the case will be dropped after some period of inpatient treatment. The hearing on the competency report should not be waived without an affirm*674ative action on the part of the defendant as well as counsel, he said. The committee noted that the present statute requires the hearing if either the DA, defendant or defense counsel "contests" the finding of the report. Mr. Haag felt that this meant that the hearing should be held unless the defendant waived it on the record. The waiver of this hearing should not be presumed; it should be treated like the right to a jury trial, which must be waived in open court.
Judicial Council Committee Summary of Proceedings, February 20, 1981, at 10 (emphasis added). Fosdal and Fullin state that under the new statute, "The court must hold a competency hearing after the examiner's report is received unless the hearing is waived by the defendant and both counsel." WlS. B. BULL., October 1982, at 12 (emphasis added).
There are good reasons for the requirement that the defendant personally waive his or her right to a competency hearing in open court. Defendant's counsel may be fully convinced that his or her client is incompetent to proceed. Counsel may be willing to have the determination of competency made solely on the basis of the examiner's report. Defendant, on the other hand, may be equally convinced that he or she is competent to proceed, as was the petitioner in Matalik. A defendant may prefer to be tried on the merits rather than chancing a commitment under sec. 971.14(5), Stats.
The possibility of a conflict between the defendant and defense counsel explains the legislative language. Section 971.14(4)(b), Stats., gives to the district attorney, the defendant and to the defendant's counsel the right to waive their "respective opportunities" to present other evidence. It would be anomalous to allow defendant's counsel, who is in opposition to the defendant's *675position with respect to competency, to waive the defendant's right to be heard on the competency issue.
For these reasons, I respectfully dissent.
The court's opinion distinguishes State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991), and its constitutionally mandated requirements from this case in part because "in this case we deal only with a statutory right to an evidentiary hearing." The statutory right at issue, however, was a direct response to Matalik's express constitutional due process concerns.