¶1dissenting.
¶2The decision in State v. Middlebrooks, 236 Ga. 52 (222 SE2d 343) (1976), is not applicable to this case.
¶3In January, 1976, this court decided four cases relating to commitment hearings: State v. Middlebrooks, supra;State v. Hightower, 236 Ga. 58 (222 SE2d 333); Hannah v. Stone, 236 Ga. 65 (222 SE2d 362); and Tarpkin v. State, 236 Ga. 67 (222 SE2d 364).
¶4The facts in Middlebrookswere that no commitment hearing had been held at all. The facts in the other three cases were that a commitment hearing had been held but the accused had been denied the right to counsel. In Middlebrooksthe majority wrote (236 Ga. at 53): "Commitment hearing issues which are presented to us in post-conviction proceedings usually arise in one of two *544situations. In one, a commitment hearing has been held but at the hearing accused was denied the assistance of counsel; in the other, no commitment hearing has been held at all. This case presents the latter situation. . .”
¶5In the case now before us a commitment hearing was held and thus this case presents the former situation. In this case the judge conducting the hearing refused to hear any evidence from the witnesses subpoenaed by the accused. Thus this accused was denied the right to assistance of counsel (Hightower, Hannah, Tarpkin, supra), and the state has not shown that this constitutional error was harmless beyond a reasonable doubt.