In 1986 the petitioner Michael O’Rourke was found guilty of capital murder and sentenced to death. We affirmed. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). Petitioner subsequently filed a petition to proceed in circuit court pursuant to Criminal Procedure Rule 37. On February 27,1989, we granted petitioner permission to apply to the circuit court for an evidentiary hearing on two allegations of ineffective assistance of counsel. After an evidentiary hearing was held at which petitioner was represented by appointed counsel, Jeff Rosenzweig, the trial court entered an order denying post-conviction relief. Shortly after Mr. Rosenzweig lodged the record on appeal of the order, petitioner filed a pro se motion in which he stated that he did not wish to pursue the appeal or further litigation. He further stated in the heading of the motion that he wished to terminate Mr. Rosenzweig’s services as counsel.
A condemned person may waive collateral challenges to his conviction and sentence provided he is mentally competent to do so. Rees v. Peyton, 384 U.S. 312 (1966); Smith v. Armontrout, 812 F.2d 1050 (8th Cir.), cert. denied, 107 S. Ct. 3277 (1987); see Rumbaugh v. Procunier, 753 F.2d 395 (1985); Streetman v. Lynaugh, 674 F. Supp. 229 (E. D. Tex. 1987); see also Gilmorev. Utah, 429 U.S. 1012 (1976). In Rees the United States Supreme Court set out the standard to be used in deciding whether a person under sentence of death is mentally competent *325to choose to forgo further appeals and collateral attacks on his conviction and sentence. The test is
Whether he has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.
As the petitioner has alleged that he is competent and there can be no doubt that a competent person may avail himself of the right to abandon collateral remedies, we remand the case to the trial court for an evidentiary hearing on whether petitioner is competent under the standard announced in Rees. The trial court will appoint new counsel for the hearing.
Mr. Rosenzweig contends that petitioner is insane and that any action on this motion should be deferred pending disposition of the Rule 37 appeal, but counsel is not entitled to make the decision on whether his client is competent. While remanding this matter for a hearing may ultimately result in an even more protracted course than appears to be inevitable with most death penalty cases, the petitioner has a right to be heard.
The Rule 37 appeal is stayed and is subject to dismissal on proper motion if petitioner is found competent. If petitioner is declared incompetent to waive his post-conviction remedies, Mr. Rosenzweig will continue to represent petitioner in the Rule 37 appeal. (We decline to relieve Mr. Rosenzweig as the petitioner has not provided any good cause to remove him as attorney-of-record.)
Remanded.
Hays and Glaze, JJ., dissent.