BEFORE WALKER, C.J., DAN LEE AND SULLIVAN, JJ.
WALKER, C.J., FOR THE COURT:
Ronald Ray Gammage was tried in the Circuit Court for the Second Judicial District of Jones County and convicted of rape and armed robbery. He was sentenced to terms of forty (40) years for the rape and forty (40) years for the armed robbery, with the terms to run consecutively. From the convictions and sentences he appeals. We reverse and remand.
Gammage was charged by indictment with rape and armed robbery. In connection with a separate incident he was charged with capital murder and rape. The latter two (2) charges are not the subject of this appeal, Gammage having been acquitted on the capital murder charge, and the rape charge having been dropped. The rape and armed robbery involved in the case at bar were tried together. In the first trial the jury deadlocked with an eleven (11) to one (1) vote for acquittal. The second trial ended in a mistrial when the district attorney testified that Gammage had been indicted for capital murder. After the third trial, the jury returned verdicts of guilty on both charges, and the trial court sentenced Gammage to forty (40) years on each charge, with the terms to run consecutively.
Prior to the first trial, defense counsel moved for a mental examination, calling into question Gammage's ability to assist in the preparation of his defense. The record indicates that Gammage was examined by a psychologist, who administered intelligence tests. Those tests indicated that Gammage's intelligence quotient was 48 to 52. Based on these scores and other findings, the psychologist concluded that Gammage did not possess the mental capacity to assist in the preparation of his defense. During the first trial,
the psychologist who conducted the mental examination and a second psychologist each testified that Gammage was not capable of assisting in his defense and was not competent to stand trial. There is no indication in the record of a hearing on the question of Gammage's competency to stand trial, nor is there any indication of the trial court's ruling on that issue. After the first trial ended in a mistrial, the State, through the district attorney, moved to pass the case to the files. In its motion the State noted the eleven (11) to one (1) vote for acquittal and expressed doubt that Gammage could be convicted. Based on the psychologists' testimony in the first trial, the [district attorney] * executed and attached to the motion an affidavit asking that Gammage be committed to a mental institution. The trial court denied this motion. Subsequently [defense counsel] * made a similar motion which was [confessed] * by the State. The trial court denied this motion as well. Prior to the third trial and on motion of defense counsel, the court entered an order renewing all motions previously made in the cause and renewing the rulings on those motions. Thus, the issue of competency to stand trial was preserved.
We begin with our often stated principal that
[t]he trial of a defendant, when his mind is so clouded that he cannot remember and intelligently relate what occurred at the time of the commission of the alleged offense is a denial of due process and contrary to public policy, and [when it appears to the trial court that there is a probability that defendant is incapable of making a rational defense], * the trial court should not proceed until the defendant's mental condition has been investigated and it appears that he is sufficiently rational to make a defense.
Emanual v. State 412 So.2d 1187, 1189 (Miss. 1582) (emphasis in original).
A defendant [not competent to stand trial], * is one who does not have sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding, or does not have a rational as well as a factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402
, 80 S. Ct. 788, 4 L.Ed.2d 824 (1960); Caylor v. State, 437 So.2d 444
, 447 n. 1 (Miss. 1983). Applying this standard to the case at bar, we note several pertinent facts revealed in the record. It is undisputed that Gammage's intelligence quotient was forty-eight (48) to fifty-two (52). At one point in the proceedings, the [district attorney] * moved to pass the case to the files, attaching to the motion an affidavit asking that Gammage be committed to a mental institution. The trial court denied that motion, and denied a similar motion made by the [defendant] * and [confessed] * by the State. Two (2) psychologists testified that Gammage was not competent to assist in his own defense. The State's only effort at rebutting this evidence was an abortive attempt, during the second trial, to prove that Gammage had answered questions rationally at his arraignment. (The second trial ended in a mistrial when the district attorney testified that the arraignment was also for capital murder.)
When a defendant appears to be [Dusky] * incompetent, the trial court should appoint a competent psychiatrist, (or psychologist), selected by the court, to determine the defendant's ability to make a defense as provided in Miss. Code 99-13-11 (1972).
Gammage did not allege insanity nor do we find any indication of insanity in the record. Rather, Gammage only claims that he was unable to assist in his defense.
Having reviewed the entire record, we are of the opinion that the trial court's finding of no probability of incompetency is manifestly against the overwhelming weight of the evidence. Therefore, the conviction and sentence are reversed, and this cause is remanded to the Circuit Court of the Second Judicial District of Jones County for a determination of whether Gammage is presently competent to stand trial. If he is found competent to assist in his defense, he may be tried. If he is found not to be competent to assist in his defense the court should enter an order so finding and commit him to a mental institution or such other facility as the court may deem appropriate under all circumstances to receive treatment for his condition. The order of commitment should require regular reports as provided in Rule 4.08 advising the court: 1) whether there is substantial probability that the defendant will become mentally competent to stand trial, and 2) whether the defendant is progressing toward competency. If neither
of those conditions occurs within a reasonable period of time the judge should order that civil proceedings be instituted as provided in Miss. Code ...