The opinion of the court was delivered by
NUSS, J.:
Jeffrey L. Davis appeals the denial of his motion to correct an illegal sentence. After he was charged with rape, aggravated kidnapping, and battery, his attorney filed a motion to determine Davis’ competency. Although the district magistrate judge ordered the competency determination, his order was returned without service on the hospital. Despite the lack of a competency determination, Davis’ preliminary hearing, arraignment, and jury trial proceeded.
After Davis’ convictions of two counts of rape and his accompanying sentence of 620 months’ imprisonment were affirmed on appeal, he filed a motion alleging that the trial court lacked jurisdiction to convict him when it failed to suspend proceedings in order to determine his competency. A different district court judge from the trial judge conducted a hearing on the motion. After finding that Davis waived the illegal sentence issue by fading to raise it on his direct appeal, and after retroactively determining that Davis had been competent at the time of his trial 3 years earlier, the district court denied the motion. The Court of Appeals affirmed in State v. Davis, No. 90,982, unpublished opinion filed September 24, 2004. We granted Davis’ petition for review under K.S.A. 20-3018(b).
[171]*171The issues on appeal, and our accompanying holdings, are as follows:
1. Did the second district court err in finding that Davis had waived the illegal sentence issue by failing to raise it on his direct appeal? Yes.
2. Once Davis’ competency determination had been ordered, did the first district court err in proceeding through trial? Yes.
Accordingly, we reverse and remand with directions.
FACTS
On September 20, 1999, Jeffrey L. Davis was charged with the rape, aggravated kidnapping, and battery of 16-year-old L.L. in Larned on September 15, 1999. The next day C. Phillip Aldrich was appointed to represent Davis. On October 4, 1999, Aldrich withdrew and the court appointed Douglas Brunson.
On December 22, 1999, Brunson filed a motion to determine competency. After finding no objection from the State, the magistrate judge ordered “that a determination of competency to stand trial should be conducted at the Lamed State Hospital.” On January 14, 2000, the sheriff returned the order “by permission of the court for reasons defined by LSH [Larned State Hospital].” In other words, no competency evaluation of Davis was performed, and no competency determination was made, by the hospital.
Four months after the filing of the motion, on April 21, 2000, a preliminary hearing was conducted. Following tire hearing, Davis was bound over on two counts of rape and one count of aggravated kidnapping.
On May 1, 2000, Davis filed a pro se motion to dismiss Bmnson and appoint new counsel. Two days later, on May 3,2000, the court appointed Julie Fletcher Cowell as Davis’ third counsel. Although Cowell appeared with Davis at his arraignment on May 18, she withdrew as counsel 4 days later. On May 24, Andrew Brown was appointed as Davis’ fourth counsel.
Brown represented Davis at the jury trial occurring on September 5-6, 2000, where Davis testified on his own behalf. The jury found Davis guilty of two counts of rape.
[172]*172On September 11, 2000, Brown filed a motion for a new trial and a motion for judgment of acquittal. The trial court denied both motions. Davis was subsequently sentenced to a controlling term of 620 months’ imprisonment.
Davis appealed to the Court of Appeals, arguing there was insufficient evidence to support his convictions, that the trial court erred in admitting an alleged prior inconsistent statement, and that the charges were multiphcitous. The Court of Appeals affirmed Davis’ convictions in State v. Davis, No. 86,158, unpublished opinion filed September 20, 2002, rev. denied 275 Kan. 966 (2002).
Four days later, on September 24, 2002, Davis filed a pro se motion to correct his sentence, pursuant to K.S.A. 22-3504(1) and K.S.A. 22-3402(1). On January 27, 2003, Davis filed a second pro se motion to correct an illegal sentence pursuant to K.S.A. 22-3504(1). Both motions alleged that the trial court lacked jurisdiction when it failed to suspend proceedings in order to determine if Davis was competent to stand trial. On March 28, 2003, Davis filed a motion objecting to a retrospective determination of competency.
A district court judge different from the trial judge conducted an evidentiary hearing on June 20, 2003. There, Mark Schloemer, the Undersheriff of Pawnee County, testified he believed that the competency order had been returned because it was directed to the Lamed State Hospital and not the Lamed State Security Hospital. He opined that “the one word ‘security’ being left out is significant to the hospital, because it is defined by State statute!;] they are separate entities.”
Davis’ former attorney, Douglas Brunson, also testified. Although he made a cursory examination of the file, he essentially testified from memory. Brunson stated that he had a lengthy prosecutorial tenure as the Kiowa County Attorney and had extensive experience during his 31 years of practicing law in criminal prosecutions and defense. He testified that he does not file many motions, and when he does, he feels that they are pertinent at the time. Brunson further testified that he assumed he had a good faith basis for the motion to determine competency when filed on December 22, 1999. He additionally stated that he probably talked to [173]*173the county attorney about “the matter.” According to Brunson, he had no distinct recollection of a formalized hearing on his motion but was sure the county attorney was notified. He assumed a hearing had been conducted and defendant Davis had been present because in his experience that was “normal” for competency motions and orders.
Brunson also testified that he did not have concerns about Davis’ competency at the time of the preliminary hearing 4 months later:
“Q. Based on your thirty-one years of experience, if you were concerned about whether or not Mr. Davis was competent, would you have not objected to proceeding with preliminary hearing?
“A. I would never allow a client, if I knowingly — I would never allow a client to participate in a hearing in which he was not able to adequately aid in his defense with me. I would not knowingly do that.
“Q. And if I was to tell you the record itself is devoid of any objection at the time of the preliminary hearing as to Mr. Davis’ competency then we can assume that you had no concerns on that date?
“A. You can — you can certainly assume that I felt he was competent at that time to assist me, yes.”
However, on cross-examination Brunson candidly conceded that he did not hold a degree in psychology or any related field and could make a mistake regarding a client’s competency.
The State also proffered the transcript of the May 2000 arraignment in which the district court judge and Davis spoke concerning Davis’ understanding of his constitutional rights, the transcript of Davis’ September 2000 trial testimony, and all of Davis’ pro se motions.
On July 1, 2003, the second district court judge denied Davis’ motion to correct an illegal sentence, stating:
“Review of the file and transcripts of proceedings, particularly Defendant’s Arraignment and Trial, leave no doubt as to Defendant’s competency to understand the nature of the charges against him, and to fully assist his counsel with his defense. The [prior] Court did not issue a formal finding as to competency, but clearly the Court and Trial counsel for the State and the Defendant had no doubt as to Mr. Davis’ competency to stand Trial. Errors that do not affirmatively cause prejudice to the substantial rights of the complaining party are not fatal when substantial justice has been done. State v. Clark, 263 Kan. 370 (1997). The Trial Court had jurisdiction to proceed [in 2000].”
[174]*174The court further noted Davis waived the illegal sentence issue by failing to raise it on direct appeal, citing State v. Johnson, 269 Kan. 594, 7 P.3d 294 (2000).
Davis timely appealed. On September 24, 2004, the Court of Appeals held that it could correct an illegal sentence at any time, citing K.S.A. 22-3504(1). It affirmed, however, the district court’s retrospective determination of Davis’ competency and concluded the trial court had jurisdiction to conduct the trial in September 2000:
“In its appellate brief, the State makes much of the fact that by all appearances, Davis was perfectly competent to assist in his defense. The record on appeal supports this assertion. In addition, the order for the competency evaluation was directed to the wrong institution and could not be completed as ordered.
“We do not agree with Davis that his sentence is illegal because we find that the trial court had jurisdiction to conduct Davis’ trial. The trial court did not err by denying Davis’ motion to correct an illegal sentence.” Slip op. at 7.
We granted Davis’ petition for review.
ANALYSIS
Standard of Review
Davis continues to argue that his sentence was illegal because the district court lacked jurisdiction when it failed to suspend proceedings once his competency to stand trial was in legitimate dispute. An illegal sentence includes one imposed by a court without jurisdiction. State v. Harper, 275 Kan. 888, 890, 69 P.3d 1105 (2003). The issue of whether a criminal sentence is illegal is a question of law. Our review of questions of law is unlimited. State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004); State v. Huff, 277 Kan. 195, 199, 83 P.3d 206 (2004).
Issue 1: Did the second district court err in finding that Davis had waived the illegal sentence issue by failing to raise it on his direct appealP
The district court found that Davis waived the illegal sentence issue by fading to raise it on his direct appeal, citing Johnson, 269 Kan. at 601. The State agrees. In response, Davis argues that jurisdictional issues cannot be waived as a matter of law, citing State [175]*175v. Redford, 242 Kan. 658, 672, 750 P.2d 1013 (1988). The Court of Appeals impliedly held no waiver existed when it stated that the appellate court could correct an illegal sentence at any time, citing K.S.A. 22-3504(1). We begin our analysis by observing that the United States Supreme Court has stated: “[I]t is contradictoiy 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. [Citation omitted.]” Rate v. Robinson, 383 U.S. 375, 384, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966).
In Johnson, 269 Kan. 594, the defendant pled guilty to two counts of rape, one count of aggravated battery, and one count of kidnapping. On appeal, he argued that the district court erred in disregarding the plea agreement. The appeal was denied, and Johnson subsequently filed a motion to correct an illegal sentence, arguing that the State violated the plea agreement during sentencing. In upholding the denial of the motion, this court held that K.S.A. 22-3504(1) “may not be used as a vehicle to breathe new life into appellate issues previously abandoned or adversely determined.” 269 Kan. at 602.
Johnson, however, is distinguishable for several reasons. First, the claimed error did not fall within the definition of an illegal sentence. Second, defendant had previously raised the illegal sentence issue on his direct appeal and then dismissed his appeal. By contrast, in the instant case the alleged error is lack of jurisdiction, and we have held that a lack of jurisdiction to impose a sentence can make the sentence illegal. See Harper, 275 Kan. at 890. Additionally, here the jurisdiction issue has not been previously raised; as the Court of Appeals observed, an appellate court can correct an illegal sentence, e.g., one imposed without jurisdiction, at any time. See K.S.A. 22-3504(1); Denney, 278 Kan. at 646.
Moreover, because a judgment that is rendered without jurisdiction is void (State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 [1983]), it may be “attacked at any time and may be vacated because it is a nullity.” State v. Minor, 197 Kan. 296, 300, 416 P.2d 724 (1966).
We conclude that the district court erred in finding that Davis waived the illegal sentence issue by failing to raise it on his direct appeal.
[176]*176Issue Two: Once Davis’ competency determination had been ordered, did the first district court err in proceeding through trialP
The Statute
The State argues in the alternative that if Davis did not waive his right to argue an illegal sentence for lack of jurisdiction, his sentence is not illegal. Davis responds that the Kansas statute requires a suspension of the proceedings once his competency is in legitimate dispute, that the failure to suspend violated his rights to due process, and that the resulting sentence is therefore illegal. Before addressing their respective positions, a short review of the law governing competency to stand trial is warranted.
In Medina v. California, 505 U.S. 437, 453, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992), the United States Supreme Court reiterated that the “criminal trial of an incompetent defendant violates due process.” Some have opined that the common-law prohibition is “ ‘a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself/ ” Drope v. Missouri, 420 U.S. 162, 171, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). In Drope, the Supreme Court declared the prohibition “fundamental to an adversary system of justice.” 420 U.S. at 172. Accordingly, “[S]tate procedures must be adequate to protect this right.” Pate, 383 U.S. at 378.
In 1970, 4 years after Pate, the Kansas Legislature appeared to codify these constitutional protections in K.S.A. 22-3301 et seq. Of relevance to the instant case is K.S.A. 22-3302. Subparagraph (1) provides:
“At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant’s counsel or the prosecuting attorney may request a determination of the defendant’s competency to stand trial. If, upon the request of either party or upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.” (Emphasis added.)
Subparagraph (4) of the statute provides that if the defendant is eventually found to be competent, “the proceedings which have [177]*177been suspended shall be resumed.” (Emphasis added.) K.S.A. 22-3302(4). On the other hand, “[i]f the defendant is found to be incompetent to stand trial, the court shall proceed in accordance with K.S.A. 22-3303,” e.g., if charged with a felony, the defendant “shall be committed for evaluation and treatment to the state security hospital . . . .” (Emphasis added.) K.S.A. 22-3302(5); K.S.A. 22-3303(1).
Interpretation of a statute is a question of law, and this court’s review is unlimited. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005). In determining whether a statute is open to construction, or in construing a statute, ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the unambiguous language. State v. Haug, 237 Kan. 390, 392, 699 P.2d 535 (1985).
The statute’s language — when giving ordinary words their ordinary meaning — is clear and unequivocal. Once a court “finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall he suspended and a hearing conducted to determine the competency of the defendant.” (Emphasis added.) K.S.A. 22-3302(1). In the present case, under the plain language of the statute, when the magistrate judge ordered the competency determination — presumably because under the statute he found “reason to believe that the defendant is incompetent to stand trial” — the statute commanded that the criminal proceedings be suspended. The language from subparagraphs (4) and (5) support this analysis, i.e., the criminal proceedings shall not resume until the defendant has been found competent after the mandatory hearing.
To proceed without conducting the hearing not only is a violation of the statute but also a violation of due process. See Pate, 383 U.S. at 378, 384-86 (failure to hold competency hearing, when under Illinois statute the evidence raises a bona fide doubt as to defendant’s competency, is denial of due process); see also State v. White, 263 Kan. 283, 316, 950 P.2d 1316 (1997) (if trial court finds evidence exists at time of resentencing which raises “reason to believe” that defendant is not competent, it “shall” hold a competency hearing, citing K.S.A. 22-3302).
[178]*178The dissent disparages our statement that the magistrate judge ordered the competency determination “presumably because under the statute he found ‘reason to believe that the defendant is incompetent to stand trial.’ ” (Emphasis added.) The dissent asserts there is a complete lack of evidence to support tire order.
This criticism requires a short response. First, the State did not oppose the motion at the time and later signed its approval of the court order directing the competency determination. Moreover, whether at the district court or appellate levels, the State has never argued a lack of evidence to support the order. Additionally, because the matter was not contested, the magistrate judge was not required to — and did not — state in the order the controlling facts and the legal principles controlling his decision. See Supreme Court Rule 165 (2005 Kan. Ct. R. Annot. 217).
Indeed, even if the State had opposed the motion in 2000, an appellate challenge by the State — with no hearing transcript in the record and an order to winch no sufficiency objection was made— would have been unsuccessful. See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998). There, in upholding the denial of a deposition of a records custodian, we held that the appellant is required to designate a record sufficient to establish its claimed error, and that when the appellant fails to object to the trial court’s alleged inadequate findings, “the trial court is presumed to have found all facts necessary to support tire judgment.” (Emphasis added.) 263 Kan. at 706.
In short, because of the State’s chosen strategy and the order’s acceptable format under Supreme Court rule, the sufficiency of the evidence supporting the order may not be challenged.
Second, even if lack of evidence could be raised procedurally, it would fail substantively. As defense counsel, Rrunson was in the best position to determine whether Davis’ competency was suspect (see Watts v. Singletary, 87 F.3d 1282, 1288 [11th Cir. 1996]), and his 2003 testimony is uncontroverted about the events surrounding his 1999 motion and resultant court order. Among other things, he testified that based upon his 31 years of experience in criminal law he assumed that he had a good faith basis for the motion, that a [179]*179hearing was held, and that Davis and the county attorney were present, because that is normal procedure for competency matters.
Additionally, while Brunson s motion was unopposed, the magistrate judge was not required to grant it on that basis. See Gallagher v. Gallagher, 866 P.2d 123, 124 (Alaska 1994); 56 Am. Jur. 2d, Motions, Rules, and Orders § 31 (“While failure to oppose a motion may have a bearing on a court’s determination of the motion, an unopposed motion may not be granted unless the court is satisfied that the legal standards for granting the motion have been met.”). Accordingly, under the circumstances of this case, it follows that the magistrate judge found “reason to believe that the defendant is incompetent to stand trial,” which allowed him to sign the order for the competency determination.
In ruling against Davis’ motions to correct an illegal sentence, both the district court and the Court of Appeals relied on State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002). In Boorigie, defense counsel orally moved for a competency evaluation. As in the instant case the trial court, after finding no objection from the State, ordered the evaluation. Also as in the instant case, after ordering the evaluation, the court proceeded to the arraignment and also ruled on several motions. On appeal, Boorigie argued that the trial court violated his statutory and due process rights when it failed to suspend all proceedings pending a determination of his competency. This court affirmed. 273 Kan. at 26-27.
Boorigie, however, is distinguishable for several major reasons. First, after the court granted Boorigie’s counsel’s motion for the competency evaluation, his counsel requested that an arraignment proceed. We considered this request invited error, citing State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999). 273 Kan. at 27. Second, and most important, the trial court received the results of the evaluation prior to trial. After receipt, the trial court asked defense counsel on the morning of trial for any additional information. When neither the State nor defense counsel provided any, the trial court ruled that Boorigie was competent to stand trial based upon the competency evaluation and proceeded to trial. In effect, the court held a competency hearing. Our court then essentially conducted a harmless error analysis under K.S.A. 60-261 [180]*180(citing State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 [1997]). We concluded that the alleged error, i.e., failure to suspend, did not affirmatively cause prejudice because Boorigie was found competent. 273 Kan. at 27.
The Court of Appeals also relied upon Warden v. Conner, 93 Nev. 209, 562 P.2d 483 (1977). There, similar to the instant case, after the trial court ordered a psychiatric examination of the defendant, it failed to suspend further proceedings and provide a competency hearing per Nevada statute before accepting defendant’s guilty plea. Conner is easily distinguishable, however, because similar to Boorigie, the trial court reviewed the completed evaluation — before accepting the plea. See 93 Nev. at 210.
The fundamental problem with the State’s position in the instant case is that Davis never received a competency evaluation, or a statutory hearing where competency could be judicially determined, before his trial and subsequent conviction. Nor is there anything in the record on appeal to suggest any type of competency determination was made until years later. As mentioned earlier, his due process rights were violated, and the district court had no jurisdiction. Accordingly, under our facts there is no place for a harmless error analysis as was performed in Boorigie.
We agree with the California Court of Appeals in People v. Ary, 118 Cal. App. 4th 1016, 13 Cal. Rptr. 3d 482 (2004). There, the trial court failed to order a competency hearing as required by statute despite substantial evidence of defendant’s mental retardation. Citing California Supreme Court precedent, the court stated:
“ ‘Under section 1368 of the Penal Code the trial court has no power to proceed with the trial once a doubt arises as to the sanity of the defendant. In trying defendant without first determining at a hearing his competence to-stand trial, the court both denie[s] to defendant a substantial right [citations] and pronounce[s] judgment on him without jurisdiction to do so. In such cases the error is perse prejudicial.’ [Citation omitted.]” (Emphasis added.) 118 Cal. App. 4th at 1021.
Retrospective Competency Hearing
Although the first district court judge failed to suspend the proceedings until the court-ordered competency report was received [181]*181and until a competency determination was made, under certain circumstances the State may rectify the error by a retrospective competency hearing. As the court stated in Ary, 118 Cal. App. 4th at 1028:
“While it is certainly the case that the trial court’s error in failing to hold a competency hearing when one is warranted is not subject to harmless error review, this does not mean that the procedural due process violation can never be cured retrospectively, under appropriate circumstances, as the United States Supreme Court has suggested.”
In Drope, 420 U.S. at 183, the Supreme Court stated that a retrospective competency hearing is permissible, though “inherent [ly] difficult.” In Ary, 118 Cal. App. 4th at 1029-30, the court remanded for consideration of whether such a hearing would be possible under the facts of that case.
Although this court has not specifically addressed the issue of retrospective competency hearings, the Tenth Circuit provides guidance with its general rules. McGregor v. Gibson, 248 F.3d 946, 962-63 (10th Cir. 2001), states:
“Retrospective competency hearings are generally ‘disfavored’ but are ‘permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant.’ [Citations omitted.] In the context of deciding whether a state court’s retrospective determination of a petitioner’s competency violated that petitioner’s due process rights, we announced factors to be considered in assessing whether a meaningful retrospective determination can be made:
(1) [T]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial, including the trial judge, counsel for both the government and defendant, and jail officials. [Citation omitted.]”
In the present case, after Davis filed his motions to correct an illegal sentence objecting to a retrospective competency determination, the district court held a June 20, 2003, evidentiary hearing on the motions. Without expressly identifying the hearing as one regarding a retrospective competency determination, the Court of Appeals appeared to treat it as such.
[182]*182Regarding the McGregor factor of statements by the defendant in the trial record, the district court reviewed the transcript of Davis’ trial testimony and of the arraignment featuring a colloquy between Davis and the court concerning Davis’ understanding of his constitutional rights. It also reviewed all of Davis’ pro se motions.
Regarding the McGregor factor of individuals who interacted with the defendant, the court heard Davis’ former attorney, Douglas Brunson, testify. While Brunson stated that the motion to determine competency was filed in good faith and was pertinent at the time, he also testified that he did not have concerns about Davis’ competency at the time of the preliminary hearing.
However, the record does not disclose the reason for the change in his opinion within 4 months of doubting his client’s competency. Nor was he the attorney who prepared and tried the case to the jury. Brunson also admitted that he has no degree in psychology or related fields and could have made a mistake regarding his client’s competency to proceed with the preliminary hearing.
Regarding the McGregor factor of contemporaneous medical evidence, the Tenth Circuit emphasized this factor’s importance:
“We are influenced greatly by the lack of contemporaneous medical evidence in the record regarding McGregor’s competency at the time of the trial. See, e.g., Dusky [v. United States, 362 U.S. 402, 403, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960)] (concluding no retrospective competency determination could be held ‘[i]n view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony’).” 248 F.3d at 963.
In McGregor, the court at least had some medical amount of evidence about defendant from a psychiatrist and a psychologist. See 248 F.3d at 955-58. The district court in the instant case was provided no medical evidence whatsoever. As the Ninth Circuit Court of Appeals stated in Moran v. Godinez, 57 F.3d 690, 696 (9th Cir. 1994): “[Mjedical reports contemporaneous to the time of [trial] greatly increase the chance for an accurate retrospective evaluation of a defendant’s competence.”
The McGregor court also discussed the lack of contemporaneous medical evidence coupled with its fourth factor, the passage of time:
[183]*183“Finally, although we emphasize that time is not an insurmountable barrier to a retrospective competency determination, the difficulties arising from the lack of contemporaneous medical evidence are amplified by the further difficulties that necessarily arise from the significant passage of time.” 248 F.3d at 963.
While the district court made its competency determination approximately 3 years after Davis’ trial, as compared to an appreciably greater period in McGregor, the coupling of such an amount of time with the complete lack of medical evidence is significant. We reach this conclusion with full awareness that the statute regarding determination of competency does not require a psychiatric or psychological examination. See K.S.A. 22-3302(3) (“The court shall determine the issue of competency. . . . The court may order a psychiatric or psychological examination of the defendant.” [Emphasis added.]). Here, however, the magistrate judge signed an order for a “determination of competency” to be performed at the Lamed State Hospital, which would entail a psychiatric or psychological examination, or both. When a judge “finds that there is reason to believe that the defendant is incompetent to stand trial” (K.S.A. 22-3302[l]), finds that the competency concern is sufficient to warrant an order for a medical determination on the issue (K.S.A. 22-3302[3]), and the record is silent on why the judge did not pursue the medical determination, a retrospective judicial determination of competency based upon no medical evidence whatsoever cannot stand.
Our conclusion does not, as the dissent argues, eliminate several McGregor factors and elevate a third factor to a threshold requirement in cases where a competency determination was ordered but did not occur and there is no contemporaneous medical evidence. Rather, it recognizes the inconsistency, and inherent difficulty, in asking a district court judge to make a defendant’s competency determination — without any medical evidence — after a fellow judge 3 years earlier had required the same determination to be made by medical professionals.
The dissent also argues that the order for competency determination was a nullity because it did not strictly conform to the statutory language of K.S.A. 22-3302(3). Specifically, the dissent claims that because the order incorrectly directed Davis to the [184]*184Lamed State Hospital, and not the Larned State Security Hospital, it was incapable of being carried out. Once again, the dissent raises an argument sua sponte — either overlooked, or rejected, by the parties. Like the dissent’s earlier assertion of a lack of evidence to support the order for a competency determination, its present argument overlooks the requirements of a court order. It also overlooks the language of K.S.A. 22-3302(1).
The statute requires only that the judge find “reason to believe that the defendant is incompetent to stand trial . . . .’’K.S.A. 22-3302(1). As was established earlier, because the competency motion was uncontested by the State, the resultant order was not required to contain the facts and the legal principles controlling tire decision. Accordingly, the order was not required to contain the specific finding of “reason to believe the defendant is incompetent”; rather, the finding is inherent in the order. See Supreme Court Rule 165; see also Hill, 263 Kan. at 706 (when no objection to any alleged inadequate findings, trial court presumed to have found all facts necessary to support order). Furthermore, the mere misdirection of the order to the wrong hospital does not eliminate this finding or render it unsubstantiated. And once that finding has been made, then under the statute, “the proceedings shall be suspended.” (Emphasis added.) K.S.A. 22-3302(1).
In short, Davis’ due process rights were still not adequately protected by the 2003 retrospective competency hearing. Nor, under the facts of this case, can they be adequately protected by remanding for a second retrospective determination of his competency at the time of trial in September 2000. See McGregor, 248 F.3d at 963 (“McGregor’s due process rights can not adequately be protected by remanding to the state court for such a determination.”). The convictions and sentence are therefore reversed.
If the State wishes to retry Davis, it must pursue a determination of his competency at tire time of his retrial. See Drope, 420 U.S. at 183; Dusky, 362 U.S. at 403; McGregor, 248 F.3d at 963. The use of contemporaneous medical evidence regarding his competency is encouraged.
Reversed and remanded with directions.
[185]*185Luckert, J., not participating.
Lockett, J., Retired, assigned.
Larson, S.J. assigned.