Measures On Incompetent To Proceed

Under current law, a competency report must include an opinion regarding whether the defendant can be restored to competency. In relation to that report and opinion:

• If a court within the previous 5 years has found that the defendant will not attain competency within the reasonably foreseeable future and the evaluator provides an opinion that there is a substantial probability of attaining competency within the reasonably foreseeable future, the act requires the evaluator to state why the defendant's circumstances are different from the prior court's finding;
• When the defendant is diagnosed with a moderate to severe intellectual or developmental disability, acquired or traumatic brain injury, or dementia that affects the defendant's ability to gain or maintain competency and the evaluator's opinion is that there is a substantial probability of attaining competency, the act requires the evaluator to state whether the evaluator believes there are unique or different services outside the standard competency restoration curriculum developed by the department that the defendant may need in order to be restored to competency within the reasonably foreseeable future; and
• When the defendant has been found incompetent to proceed 3 or more times over the previous 3 years in the current case or any other case and even if the defendant is later restored, the act requires the evaluator to specifically identify those instances of findings of incompetency in the report.

When the defendant's evaluation includes one of the above situations, the court shall hold a hearing, within 35 days of receiving the report, on the issue of whether there is a substantial probability that the defendant will be restored to competency within the reasonably foreseeable future. At the hearing, there is a presumption that the defendant will not attain competency within the reasonably foreseeable future. A party attempting to overcome that presumption must prove by a preponderance of the evidence that there is a substantial probability that restoration efforts will be successful within the reasonably foreseeable future.

Under current law, when a defendant is found incompetent to proceed and charged with certain offenses that are not victims' rights act crimes, the court may dismiss those charges. The act removes the victims' rights act crimes limitation.

When the defendant is in custody on a misdemeanor, petty offense, or traffic offense, and is incompetent to proceed, the act requires the court to set a hearing on bond within 7 days of the defendant being found incompetent to proceed. At the bond hearing there is a presumption that the court shall order a personal recognizance bond. If the court does not order a personal recognizance bond, the court shall make findings of fact based on clear and convincing evidence that extraordinary circumstances exist to overcome the presumption of a release and the clinical recommendation for outpatient treatment.

When a defendant is found incompetent to proceed or when civil commitment proceedings are initiated in a municipal case, the municipal court shall dismiss the case.

(Note: This summary applies to this bill as enacted.)