Title 77 - Utah Code of Criminal Procedure - Chapter 15 - Inquiry into Sanity of Defendant - Section 6 - Commitment on finding of incompetency to stand trial -- Subsequent hearings -- Notice to prosecuting attorneys.


Published: 2018-05-08

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Effective 5/8/2018 77-15-6 Commitment on finding of incompetency to stand trial -- Subsequent hearings -- Notice to prosecuting attorneys. (1)

(a) Except as provided in Subsection (5), if after a hearing a court finds a defendant to be incompetent to proceed, the court shall order the defendant committed to the department for restoration treatment.

(b) The court may recommend but may not order placement of the defendant. The court may, however, order that the defendant be placed in a secure setting rather than a nonsecure setting. Following restoration screening, the department's designee shall designate and inform the court of the specific placement and restoration treatment program for the defendant.

(c) Restoration treatment shall be of sufficient scope and duration to: (i) restore the individual to competency; or (ii) determine whether the individual can be restored to competency in the foreseeable future.

(d) A defendant whom a court determines is incompetent to proceed may not be held for restoration treatment longer than:

(i) the time reasonably necessary to determine whether there is a substantial probability that the defendant will become competent to stand trial in the foreseeable future, or that the defendant cannot become competent to stand trial in the foreseeable future; and

(ii) the maximum period of incarceration that the defendant could receive if the defendant were convicted of the most severe offense of the offenses charged.

(2) (a) A defendant who is receiving restoration treatment shall receive a progress toward

competency evaluation, by: (i) a forensic evaluator, designated by the department; and (ii) an additional forensic evaluator, if requested by a party and paid for by the requesting party.

(b) A forensic evaluator shall complete a progress toward competency evaluation and submit a report within 90 days after the day on which the forensic evaluator receives the commitment order. If the forensic evaluator is unable to complete the report within 90 days, the forensic evaluator shall provide to the court and counsel a summary progress statement that informs the court that additional time is necessary to complete the report, in which case the examiner shall have up to an additional 45 days to provide the full report.

(c) The report shall: (i) assess whether the defendant is exhibiting false or exaggerated physical or psychological

symptoms; (ii)describe any diagnostic instruments, methods, and observations used by the examiner to

make the determination; (iii)state the forensic evaluator's opinion as to the effect of any false or exaggerated symptoms

on the defendant's competency to stand trial; (iv)assess the facility's or program's capacity to provide appropriate restoration treatment for

the defendant; (v)assess the nature of restoration treatment provided to the defendant; (vi)assess what progress the defendant has made toward competency restoration, with respect

to the factors identified by the court in its initial order; (vii)describe the defendant's current level of intellectual or developmental disability and need for

treatment, if any; and

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(viii)assess the likelihood of restoration to competency, the amount of time estimated to achieve competency, or the amount of time estimated to determine whether restoration to competency may be achieved.

(3) The court on its own motion or upon motion by either party or the department may appoint an additional forensic evaluator to conduct a progress toward competency evaluation. If the court appoints an additional forensic evaluator upon motion of a party, that party shall pay the costs of the additional forensic evaluator.

(4) Within 15 days after the day on which the court receives the forensic evaluator's report of the progress toward competency evaluation, the court shall hold a hearing to review the defendant's competency. At the hearing, the burden of proving that the defendant is competent to stand trial is on the proponent of competency. Following the hearing, the court shall determine by a preponderance of evidence whether the defendant is:

(a) competent to stand trial; (b) incompetent to proceed, with a substantial probability that the defendant may become

competent in the foreseeable future; or (c) incompetent to proceed, without a substantial probability that the defendant may become

competent in the foreseeable future. (5)

(a) If the court determines that the defendant is competent to stand trial, the court shall: (i) proceed with the trial or other procedures as may be necessary to adjudicate the charges;

and (ii) order that the defendant be returned to the placement and status that the defendant was in

at the time when the petition for the adjudication of competency was filed, unless the court determines that a different placement is more appropriate.

(b) If the court determines that the defendant is not competent to proceed but that there is a substantial probability that the defendant may become competent in the foreseeable future, the court may order that the defendant remain committed to the department or the department's designee for the purpose of restoration treatment.

(c) If the court determines that the defendant is incompetent to proceed and that there is not a substantial probability that the defendant may become competent in the foreseeable future, the court shall order the defendant released from commitment to the department, unless the prosecutor informs the court that commitment proceedings pursuant to Title 62A, Chapter 5, Services for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act, will be initiated. These commitment proceedings must be initiated within seven days after the day on which the court makes the determination described in Subsection (4)(c), unless the court finds that there is good cause to delay the initiation of the civil commitment proceedings. The court may order the defendant to remain in the commitment of the department until the civil commitment proceedings conclude. If the defendant is civilly committed, the department shall notify the court that adjudicated the defendant incompetent to proceed at least 10 days before any release of the committed individual.

(6) If a court, under Subsection (5)(b), extends a defendant's commitment, the court shall schedule a competency review hearing for the earlier of:

(a) the department's best estimate of when the defendant may be restored to competency; or (b) three months after the day on which the court determined under Subsection (5)(b) to extend

the defendant's commitment. (7) If a defendant is not competent to proceed by the day of the competency review hearing that

follows the extension of a defendant's commitment, a court shall: (a) except for a defendant charged with crimes listed in Subsection (8), order a defendant:

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(i) released; or (ii) temporarily detained pending civil commitment proceedings under the same terms as

described in Subsection (5)(c); and (b) terminate the defendant's commitment to the department for restoration treatment.

(8) If the defendant has been charged with aggravated murder, murder, attempted murder, manslaughter, or a first degree felony and the court determines that the defendant is making reasonable progress towards restoration of competency at the time of the hearing held pursuant to Subsection (6), the court may extend the commitment for a period not to exceed 9 months for the purpose of restoration treatment, with a mandatory review hearing at the end of the 9-month period.

(9) If at the 9-month review hearing described in Subsection (8), the court determines that the defendant is not competent to proceed, the court shall:

(a) order the defendant, except for a defendant charged with aggravated murder or murder, to be:

(i) released; or (ii) temporarily detained pending civil commitment proceedings under the same terms as

provided in Subsection (5)(c); and (b) terminate the defendant's commitment to the department for restoration treatment.

(10) If the defendant has been charged with aggravated murder or murder and the court determines that the defendant is making reasonable progress towards restoration of competency at the time of the 9-month review hearing described in Subsection (8), the court may extend the commitment for a period not to exceed 24 months for the purpose of restoration treatment.

(11) If the court extends the defendant's commitment term under Subsection (10), the court shall hold a hearing no less frequently than at 12-month intervals following the extension for the purpose of determining the defendant's competency status.

(12) If, at the end of the 24-month commitment period described in Subsection (10), the court determines that the defendant is not competent to proceed, the court shall:

(a) order the defendant to be: (i) released; or (ii) temporarily detained pending civil commitment proceedings under the same terms as

provided in Subsection (5)(c); and (b) terminate the defendant's commitment to the department for restoration treatment.

(13) Neither release from a pretrial incompetency commitment under the provisions of this section nor civil commitment requires dismissal of criminal charges. The court may retain jurisdiction over the criminal case and may order periodic reviews.

(14) A defendant who is civilly committed pursuant to Title 62A, Chapter 5, Services for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act, may still be adjudicated competent to stand trial under this chapter.

(15) (a) The remedy for a violation of the time periods specified in this section, other than those

specified in Subsection (5)(c), (7), (9), or (12), shall be a motion to compel the hearing, or mandamus, but not release from detention or dismissal of the criminal charges.

(b) The remedy for a violation of the time periods specified in Subsection (5)(c), (7), (9), or (12), or is not dismissal of the criminal charges.

(16) In cases in which the treatment of the defendant is precluded by court order for a period of time, that time period may not be considered in computing time limitations under this section.

(17)

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(a) At any time that the defendant becomes competent to stand trial, the clinical director of the hospital, the department, or the department's designee shall certify that fact to the court.

(b) The court shall conduct a competency review hearing: (i) within 15 working days after the day on which the court receives the certification described in

Subsection (17)(a); or (ii) within 30 working days after the day on which the court receives the certification described

in Subsection (17)(a), if the court determines that more than 15 days are necessary for good cause related to the defendant's competency.

(18) The court may order a hearing or rehearing at any time on its own motion or upon recommendations of the clinical director of the hospital or other facility or the department.

(19) Notice of a hearing on competency to stand trial shall be given to the prosecuting attorney. If the hearing is held in the county where the defendant is confined, notice shall also be given to the prosecuting attorney for that county.

Amended by Chapter 147, 2018 General Session