Chapter 307
2012 -- H 7504
Enacted 06/20/12
A N A C T
RELATING TO
BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND HOSPITALS -- MENTAL
HEALTH--COMPETENCY TO STAND TRIAL
Introduced
By: Representatives Tarro, Serpa,
Date Introduced: February 09, 2012
It is enacted by the
General Assembly as follows:
SECTION 1. Section 40.1-5.3-3 of the General Laws in Chapter
40.1-5.3 entitled
"Incompetency to Stand
Trial and Persons Adjudged Not Guilty by Reason of Insanity" is hereby
amended to read as follows:
40.1-5.3-3.
Competency to stand trial. -- (a)
Definitions. - As used in this section:
(1) "Attorney for
the state" means the attorney general, an authorized assistant attorney
general, or such other person as may be authorized by law to
act as a representative of the state in
a criminal proceeding;
(2)
"Competent" or "competency" means mental ability to stand
trial. A person is
mentally competent to stand trial if he or she is able to
understand the character and consequences
of the proceedings against him or her and is able
properly to assist in his or her defense;
(3)
"Department" means the state department of mental health,
retardation, and hospitals.
(4)
"Director" means the director of the state department of mental
health, retardation,
and hospitals;
(5)
"Incompetent" or "incompetency" means mentally incompetent
to stand trial. A
person is mentally incompetent to stand trial if he or she is
unable to understand the character and
consequences of the proceedings against him or her or is unable
properly to assist in his or her
defense;
(b) Presumption of
competency. - A defendant is presumed competent. The burden of
proving that the defendant is not competent shall be by a
preponderance of the evidence, and the
burden of going forward with the evidence shall be on the
party raising the issue. The burden of
going forward shall be on the state if the court raises the
issue.
(c) Request for
examination. - If at any time during a criminal proceeding, prior to the
imposition of sentence, it appears that the defendant is not
competent, counsel for the defendant
or the state, or the court, on its own motion, may
request an examination to determine the
defendant's competency.
(d) Examination of
defendant. - (1) If the court finds that the request
for examination is
justified, the court shall order an examination of the
defendant. The scope of the examination
shall be limited to the question of whether the defendant
is competent.
(2) The examination
shall take place on an outpatient basis if the defendant is to be
released on bail or recognizance. If the defendant is ordered
confined at the adult correctional
institutions, the examination shall take place at that facility.
The department shall appoint or
designate the physician(s) who will conduct the examinations.
(3) If the defendant is
ordered confined to the adult correctional institutions, the
physician shall complete the examination within five (5) days.
If the physician determines that the
defendant is incompetent to stand trial, the defendant shall be
immediately transferred to the
institute of mental health's forensic unit pending the hearing
provided for in subsection (g).
(e) Bail or
recognizance during examination. - (1) A defendant for whom a competency
examination has been ordered shall be entitled to release on bail
or recognizance to the same
extent and on the same terms and conditions as if the issue
of competency had not been raised.
(2) The court may order
the defendant to appear at a designated time and place for
outpatient examination, and such an appearance may be made a
condition of pretrial release.
(f) Reports of examining
physicians. - Each examining physician shall prepare a report,
in writing, in which he or she shall state his or her
findings concerning the defendant's
competency together with the medical and other data upon which
his or her findings are based.
The report shall be filed with the court within ten
(10) business days if the defendant was ordered
confined at the adult correctional institutions and as soon as
practicable if the defendant was
released on bail or recognizance and copies given to the attorney
for the state and to the defendant
or his or her counsel.
(g) Hearing. - Upon
receipt of the report and appropriate notice to the parties, the court
shall hold a hearing unless the report concludes that the
defendant is competent and the defendant
and the attorney for the state in open court state in
writing their assent to the findings on the
record. At the hearing, the report shall be introduced,
other evidence bearing on the defendant's
competence may be introduced by the parties, and the defendant
may testify, confront witnesses,
and present evidence on the issue of his or her
competency. On the basis of the evidence
introduced at the hearing, the court shall decide if the
defendant is competent.
(h) Commitment of the
defendant. - (1) If the court finds, after the hearing, that a
defendant is competent it shall proceed with the criminal case.
(2) If the court finds
that a defendant is incompetent, it shall commit him or her to the
custody of the director for the purpose of determining
whether or not the defendant is likely to
imperil the peace and safety of the people of the state or
the safety of himself or herself and
whether the defendant will regain competency within the
maximum period of any placement
under this chapter.
(3) Not later than
fifteen (15) days from the date of the order of commitment, the director
shall prepare and file with the court a written report in
which he or she shall state his or her
opinion regarding the defendant's dangerousness, the
likelihood of the defendant becoming
competent to stand trial within the maximum period of any
placement order and the
recommendations of the department regarding appropriate care and
treatment of the defendant.
(4) In the event the
director is unable to complete the examination of the person in time
to render his or her report within the fifteen (15) day
period, he or she shall report that fact, in
writing, to the court with a statement of the reasons why the
examination and report could not be
completed within the prescribed period. A copy of the
director's statement shall be given to the
attorney general and to the defendant or his or her counsel,
any of whom may respond in writing,
or if the court deems it appropriate, orally, to the director's
statement. The court may thereupon
enter an order extending for an additional twenty (20) days
the time in which the director is to file
his or her report.
(i)
Hearing. - (1) Upon receipt of the report and
appropriate notice to the director, the
attorney general and the defendant or his or her counsel, the
court shall hold a hearing at which
the report shall be introduced, other evidence bearing on
the question of the mental condition of
the person may be introduced by the parties, and the
person may testify, confront witnesses, and
present evidence.
(2) If the court finds
that a defendant who is incompetent may be placed on outpatient
status without imperiling the peace or safety of the public
or the safety of himself or herself, it
may commit the defendant to an appropriate outpatient
facility which agrees to provide treatment
to the defendant and to adhere to the requirements of
this section, in order that the defendant may
receive treatment to restore or establish his or her
competency.
(3) If the court finds
that a defendant who is incompetent is likely to imperil the peace or
safety of the people of the state or the peace and safety of
himself or herself, it may order the
defendant to the facility established pursuant to section
40.1-5.3-1 or to the general wards of the
institute of mental health, if the director agrees that the
defendant should be placed on the general
wards. A person who is ordered to be treated on inpatient
status shall not be paroled, furloughed,
placed on outpatient status or removed from a locked
facility or otherwise released from the
institution where he or she is being treated except upon petition
to the court by the director, on
notice to the attorney general and the defendant or his or
her counsel, and after hearing thereon
and entry of an order by a judge of the court authorizing
such release. The commitment ordered
pursuant to this section shall terminate upon the occurrence
of any of the following:
(i)
The defendant is determined by the court to be competent; or
(ii) The charges
against the defendant are dismissed pursuant to subsection (j); or
(iii) The charges
against the defendant are dismissed or a nolle prosequi is entered; or
(iv)
The defendant is civilly committed pursuant to section 40.1-5-8; or
(v) The court finds
there is no reasonable likelihood that in the foreseeable future the
defendant will become competent and his or her condition is
such that he or she cannot properly
be committed under section 40.1-5-8.
(j) Period of
commitment. - When a court commits a defendant pursuant to subsection
(i)(2)
or (i)(3) it shall compute,
counting from the date of entry to the order of commitment, the
date of the expiration of the period of time equal to two
thirds ( 2/3) of the maximum term of
imprisonment for the most serious offense with which the defendant
is charged. If the maximum
term for the most serious offense charged is life
imprisonment or death, the court shall for the
purpose of computation deem such offense to be punishable by
a maximum term of thirty (30)
years. In the order of commitment, the court shall provide
that if, on the date so computed, the
defendant is still committed under the order, the charges
against him or her shall be dismissed.
(k) Periodic review. -
The director shall petition the court to review the state of
competency of a defendant committed pursuant to
subsection (i)(2) or (i)(3)
not later than six (6)
months from the date of the order of commitment and every
six (6) months thereafter, or when
the director believes the defendant is no longer
incompetent, whichever occurs first. Outpatient
facilities which are providing treatment to defendants in
accordance with subsection (i)(2) shall
prepare reports to be submitted to the director in accordance
with the requirements of this section.
The director shall attach to the petition a report on
the condition of the defendant. If the report
indicates that the defendant remains incompetent, it shall
include a prognosis regarding the
likelihood that he or she will become competent prior to the
dismissal of the charges pursuant to
subsection (j). Copies of the report shall be given to the
attorney for the state and to the defendant
or his or her counsel.
(l) Defendant's right
to petition. - A defendant committed pursuant to subsection (i)(2) or
(i)(3)
may at any time petition the court to review the state
of his or her competency.
(m) Hearing on
petition. - Upon receipt of a petition pursuant to subsection (k) or (l) and
appropriate notice to the defendant, the state, and the director,
the court shall hold a hearing at
which the parties may introduce evidence as to the
defendant's competency, including any reports
of the director, and the defendant may testify, confront
witnesses, and present evidence as to his
or her competency and prognosis. On the basis of the
evidence, the court shall make a finding as
to the defendant's competency and, if he or she is found
to be incompetent, whether a reasonable
likelihood exists that he or she will become competent prior to
the dismissal of the charges
pursuant to subsection (j). If the court finds that the
defendant is competent, it shall enter an order
to that effect. If the court finds that the defendant is
incompetent and that a reasonable likelihood
exists that he or she will become competent prior to the
dismissal of the charges pursuant to
subsection (j), it shall order continuation of the commitment of
the defendant. If the court finds
that the defendant is incompetent and that a reasonable
likelihood does not exist that he or she
will become competent prior to the dismissal of the
charges pursuant to subsection (j), it shall
order that thirty (30) days thereafter the defendant be
discharged from detention under the order
of commitment. Upon entry of the order the state may
commence proceedings seeking to commit
the defendant pursuant to section 40.1-5-8.
(n) Statements
inadmissible. - No statements made by a defendant in the course of an
examination conducted pursuant to subsection (d) or during a
hearing conducted pursuant to
subsection (i) or (m) shall be
admissible in evidence against the defendant in any criminal action
on any issue other than his or her mental condition. The
statements shall be admissible on the
issue of his or her mental condition even though they might
otherwise be deemed to be privileged
communications.
(o) Disposition of
charges. - The court may, at any time, proceed to a disposition of the
charges pending against a defendant who has been committed
pursuant to subsection (i)(2) or
(i)(3)
if the factual and legal issues involved can be
resolved without regard to the competency of
the defendant.
SECTION 2. This act shall take effect upon passage.
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LC01161
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