§ 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, anauthorized assistant attorney general, or such other person as may beauthorized by law to act as a representative of the state in a criminalproceeding;
(2) "Competent" or "competency" means mental ability to standtrial. A person is mentally competent to stand trial if he or she is able tounderstand the character and consequences of the proceedings against him or herand 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 ofmental health, retardation, and hospitals;
(5) "Incompetent" or "incompetency" means mentallyincompetent to stand trial. A person is mentally incompetent to stand trial ifhe or she is unable to understand the character and consequences of theproceedings against him or her or is unable properly to assist in his or herdefense;
(b) Presumption of competency. A defendant is presumedcompetent. The burden of proving that the defendant is not competent shall beby a preponderance of the evidence, and the burden of going forward with theevidence shall be on the party raising the issue. The burden of going forwardshall be on the state if the court raises the issue.
(c) Request for examination. If at any time during acriminal proceeding, prior to the imposition of sentence, it appears that thedefendant is not competent, counsel for the defendant or the state, or thecourt, on its own motion, may request an examination to determine thedefendant's competency.
(d) Examination of defendant. (1) If the court findsthat the request for examination is justified, the court shall order anexamination of the defendant. The scope of the examination shall be limited tothe question of whether the defendant is competent.
(2) The examination shall take place on an outpatient basisif the defendant is to be released on bail or recognizance. If the defendant isordered confined at the adult correctional institutions, the examination shalltake place at that facility. The department shall appoint or designate thephysician(s) who will conduct the examinations.
(3) If the defendant is ordered confined to the adultcorrectional institutions, the physician shall complete the examination withinfive (5) days. If the physician determines that the defendant is incompetent tostand trial, the defendant shall be immediately transferred to the institute ofmental 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 orderedshall be entitled to release on bail or recognizance to the same extent and onthe same terms and conditions as if the issue of competency had not been raised.
(2) The court may order the defendant to appear at adesignated time and place for outpatient examination, and such an appearancemay be made a condition of pretrial release.
(f) Reports of examining physicians. Each examiningphysician shall prepare a report, in writing, in which he or she shall statehis or her findings concerning the defendant's competency together with themedical and other data upon which his or her findings are based. The reportshall be filed with the court within ten (10) days if the defendant was orderedconfined at the adult correctional institutions and as soon as practicable ifthe defendant was released on bail or recognizance and copies given to theattorney for the state and to the defendant or his or her counsel.
(g) Hearing. Upon receipt of the report andappropriate notice to the parties, the court shall hold a hearing unless thereport concludes that the defendant is competent and the defendant and theattorney for the state in open court state in writing their assent to thefindings. At the hearing, the report shall be introduced, other evidencebearing on the defendant's competence may be introduced by the parties, and thedefendant may testify, confront witnesses, and present evidence on the issue ofhis 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 thecourt finds, after the hearing, that a defendant is competent it shall proceedwith the criminal case.
(2) If the court finds that a defendant is incompetent, itshall commit him or her to the custody of the director for the purpose ofdetermining whether or not the defendant is likely to imperil the peace andsafety of the people of the state or the safety of himself or herself andwhether the defendant will regain competency within the maximum period of anyplacement under this chapter.
(3) Not later than fifteen (15) days from the date of theorder of commitment, the director shall prepare and file with the court awritten report in which he or she shall state his or her opinion regarding thedefendant's dangerousness, the likelihood of the defendant becoming competentto stand trial within the maximum period of any placement order and therecommendations of the department regarding appropriate care and treatment ofthe defendant.
(4) In the event the director is unable to complete theexamination of the person in time to render his or her report within thefifteen (15) day period, he or she shall report that fact, in writing, to thecourt with a statement of the reasons why the examination and report could notbe completed within the prescribed period. A copy of the director's statementshall be given to the attorney general and to the defendant or his or hercounsel, any of whom may respond in writing, or if the court deems itappropriate, orally, to the director's statement. The court may thereupon enteran order extending for an additional twenty (20) days the time in which thedirector is to file his or her report.
(i) Hearing. (1) Upon receipt of the report andappropriate notice to the director, the attorney general and the defendant orhis or her counsel, the court shall hold a hearing at which the report shall beintroduced, other evidence bearing on the question of the mental condition ofthe 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 incompetentmay be placed on outpatient status without imperiling the peace or safety ofthe public or the safety of himself or herself, it may commit the defendant toan appropriate outpatient facility which agrees to provide treatment to thedefendant and to adhere to the requirements of this section, in order that thedefendant may receive treatment to restore or establish his or her competency.
(3) If the court finds that a defendant who is incompetent islikely to imperil the peace or safety of the people of the state or the peaceand safety of himself or herself, it may order the defendant to the facilityestablished pursuant to § 40.1-5.3-1 or to the general wards of theinstitute of mental health, if the director agrees that the defendant should beplaced on the general wards. A person who is ordered to be treated on inpatientstatus shall not be paroled, furloughed, placed on outpatient status or removedfrom a locked facility or otherwise released from the institution where he orshe is being treated except upon petition to the court by the director, onnotice to the attorney general and the defendant or his or her counsel, andafter hearing thereon and entry of an order by a judge of the court authorizingsuch release. The commitment ordered pursuant to this section shall terminateupon 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 pursuantto subsection (j); or
(iii) The charges against the defendant are dismissed or anolle prosequi is entered; or
(iv) The defendant is civilly committed pursuant to §40.1-5-8; or
(v) The court finds there is no reasonable likelihood that inthe foreseeable future the defendant will become competent and his or hercondition is such that he or she cannot properly be committed under §40.1-5-8.
(j) Period of commitment. When a court commits adefendant pursuant to subsection (i)(2) or (i)(3) it shall compute, countingfrom the date of entry to the order of commitment, the date of the expirationof the period of time equal to two thirds ( 2/3) of the maximum term ofimprisonment for the most serious offense with which the defendant is charged.If the maximum term for the most serious offense charged is life imprisonmentor death, the court shall for the purpose of computation deem such offense tobe punishable by a maximum term of thirty (30) years. In the order ofcommitment, the court shall provide that if, on the date so computed, thedefendant is still committed under the order, the charges against him or hershall be dismissed.
(k) Periodic review. The director shall petition thecourt to review the state of competency of a defendant committed pursuant tosubsection (i)(2) or (i)(3) not later than six (6) months from the date of theorder of commitment and every six (6) months thereafter, or when the directorbelieves the defendant is no longer incompetent, whichever occurs first.Outpatient facilities which are providing treatment to defendants in accordancewith subsection (i)(2) shall prepare reports to be submitted to the director inaccordance with the requirements of this section. The director shall attach tothe petition a report on the condition of the defendant. If the reportindicates that the defendant remains incompetent, it shall include a prognosisregarding the likelihood that he or she will become competent prior to thedismissal of the charges pursuant to subsection (j). Copies of the report shallbe given to the attorney for the state and to the defendant or his or hercounsel.
(l) Defendant's right to petition. A defendantcommitted pursuant to subsection (i)(2) or (i)(3) may at any time petition thecourt to review the state of his or her competency.
(m) Hearing on petition. Upon receipt of a petitionpursuant to subsection (k) or (l) and appropriate notice to the defendant, thestate, and the director, the court shall hold a hearing at which the partiesmay introduce evidence as to the defendant's competency, including any reportsof the director, and the defendant may testify, confront witnesses, and presentevidence as to his or her competency and prognosis. On the basis of theevidence, 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 existsthat he or she will become competent prior to the dismissal of the chargespursuant 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 defendantis incompetent and that a reasonable likelihood exists that he or she willbecome competent prior to the dismissal of the charges pursuant to subsection(j), it shall order continuation of the commitment of the defendant. If thecourt finds that the defendant is incompetent and that a reasonable likelihooddoes not exist that he or she will become competent prior to the dismissal ofthe charges pursuant to subsection (j), it shall order that thirty (30) daysthereafter the defendant be discharged from detention under the order ofcommitment. Upon entry of the order the state may commence proceedings seekingto commit the defendant pursuant to § 40.1-5-8.
(n) Statements inadmissible. No statements made by adefendant in the course of an examination conducted pursuant to subsection (d)or during a hearing conducted pursuant to subsection (i) or (m) shall beadmissible in evidence against the defendant in any criminal action on anyissue other than his or her mental condition. The statements shall beadmissible on the issue of his or her mental condition even though they mightotherwise be deemed to be privileged communications.
(o) Disposition of charges. The court may, at anytime, proceed to a disposition of the charges pending against a defendant whohas been committed pursuant to subsection (i)(2) or (i)(3) if the factual andlegal issues involved can be resolved without regard to the competency of thedefendant.
§ 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, anauthorized assistant attorney general, or such other person as may beauthorized by law to act as a representative of the state in a criminalproceeding;
(2) "Competent" or "competency" means mental ability to standtrial. A person is mentally competent to stand trial if he or she is able tounderstand the character and consequences of the proceedings against him or herand 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 ofmental health, retardation, and hospitals;
(5) "Incompetent" or "incompetency" means mentallyincompetent to stand trial. A person is mentally incompetent to stand trial ifhe or she is unable to understand the character and consequences of theproceedings against him or her or is unable properly to assist in his or herdefense;
(b) Presumption of competency. A defendant is presumedcompetent. The burden of proving that the defendant is not competent shall beby a preponderance of the evidence, and the burden of going forward with theevidence shall be on the party raising the issue. The burden of going forwardshall be on the state if the court raises the issue.
(c) Request for examination. If at any time during acriminal proceeding, prior to the imposition of sentence, it appears that thedefendant is not competent, counsel for the defendant or the state, or thecourt, on its own motion, may request an examination to determine thedefendant's competency.
(d) Examination of defendant. (1) If the court findsthat the request for examination is justified, the court shall order anexamination of the defendant. The scope of the examination shall be limited tothe question of whether the defendant is competent.
(2) The examination shall take place on an outpatient basisif the defendant is to be released on bail or recognizance. If the defendant isordered confined at the adult correctional institutions, the examination shalltake place at that facility. The department shall appoint or designate thephysician(s) who will conduct the examinations.
(3) If the defendant is ordered confined to the adultcorrectional institutions, the physician shall complete the examination withinfive (5) days. If the physician determines that the defendant is incompetent tostand trial, the defendant shall be immediately transferred to the institute ofmental 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 orderedshall be entitled to release on bail or recognizance to the same extent and onthe same terms and conditions as if the issue of competency had not been raised.
(2) The court may order the defendant to appear at adesignated time and place for outpatient examination, and such an appearancemay be made a condition of pretrial release.
(f) Reports of examining physicians. Each examiningphysician shall prepare a report, in writing, in which he or she shall statehis or her findings concerning the defendant's competency together with themedical and other data upon which his or her findings are based. The reportshall be filed with the court within ten (10) days if the defendant was orderedconfined at the adult correctional institutions and as soon as practicable ifthe defendant was released on bail or recognizance and copies given to theattorney for the state and to the defendant or his or her counsel.
(g) Hearing. Upon receipt of the report andappropriate notice to the parties, the court shall hold a hearing unless thereport concludes that the defendant is competent and the defendant and theattorney for the state in open court state in writing their assent to thefindings. At the hearing, the report shall be introduced, other evidencebearing on the defendant's competence may be introduced by the parties, and thedefendant may testify, confront witnesses, and present evidence on the issue ofhis 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 thecourt finds, after the hearing, that a defendant is competent it shall proceedwith the criminal case.
(2) If the court finds that a defendant is incompetent, itshall commit him or her to the custody of the director for the purpose ofdetermining whether or not the defendant is likely to imperil the peace andsafety of the people of the state or the safety of himself or herself andwhether the defendant will regain competency within the maximum period of anyplacement under this chapter.
(3) Not later than fifteen (15) days from the date of theorder of commitment, the director shall prepare and file with the court awritten report in which he or she shall state his or her opinion regarding thedefendant's dangerousness, the likelihood of the defendant becoming competentto stand trial within the maximum period of any placement order and therecommendations of the department regarding appropriate care and treatment ofthe defendant.
(4) In the event the director is unable to complete theexamination of the person in time to render his or her report within thefifteen (15) day period, he or she shall report that fact, in writing, to thecourt with a statement of the reasons why the examination and report could notbe completed within the prescribed period. A copy of the director's statementshall be given to the attorney general and to the defendant or his or hercounsel, any of whom may respond in writing, or if the court deems itappropriate, orally, to the director's statement. The court may thereupon enteran order extending for an additional twenty (20) days the time in which thedirector is to file his or her report.
(i) Hearing. (1) Upon receipt of the report andappropriate notice to the director, the attorney general and the defendant orhis or her counsel, the court shall hold a hearing at which the report shall beintroduced, other evidence bearing on the question of the mental condition ofthe 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 incompetentmay be placed on outpatient status without imperiling the peace or safety ofthe public or the safety of himself or herself, it may commit the defendant toan appropriate outpatient facility which agrees to provide treatment to thedefendant and to adhere to the requirements of this section, in order that thedefendant may receive treatment to restore or establish his or her competency.
(3) If the court finds that a defendant who is incompetent islikely to imperil the peace or safety of the people of the state or the peaceand safety of himself or herself, it may order the defendant to the facilityestablished pursuant to § 40.1-5.3-1 or to the general wards of theinstitute of mental health, if the director agrees that the defendant should beplaced on the general wards. A person who is ordered to be treated on inpatientstatus shall not be paroled, furloughed, placed on outpatient status or removedfrom a locked facility or otherwise released from the institution where he orshe is being treated except upon petition to the court by the director, onnotice to the attorney general and the defendant or his or her counsel, andafter hearing thereon and entry of an order by a judge of the court authorizingsuch release. The commitment ordered pursuant to this section shall terminateupon 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 pursuantto subsection (j); or
(iii) The charges against the defendant are dismissed or anolle prosequi is entered; or
(iv) The defendant is civilly committed pursuant to §40.1-5-8; or
(v) The court finds there is no reasonable likelihood that inthe foreseeable future the defendant will become competent and his or hercondition is such that he or she cannot properly be committed under §40.1-5-8.
(j) Period of commitment. When a court commits adefendant pursuant to subsection (i)(2) or (i)(3) it shall compute, countingfrom the date of entry to the order of commitment, the date of the expirationof the period of time equal to two thirds ( 2/3) of the maximum term ofimprisonment for the most serious offense with which the defendant is charged.If the maximum term for the most serious offense charged is life imprisonmentor death, the court shall for the purpose of computation deem such offense tobe punishable by a maximum term of thirty (30) years. In the order ofcommitment, the court shall provide that if, on the date so computed, thedefendant is still committed under the order, the charges against him or hershall be dismissed.
(k) Periodic review. The director shall petition thecourt to review the state of competency of a defendant committed pursuant tosubsection (i)(2) or (i)(3) not later than six (6) months from the date of theorder of commitment and every six (6) months thereafter, or when the directorbelieves the defendant is no longer incompetent, whichever occurs first.Outpatient facilities which are providing treatment to defendants in accordancewith subsection (i)(2) shall prepare reports to be submitted to the director inaccordance with the requirements of this section. The director shall attach tothe petition a report on the condition of the defendant. If the reportindicates that the defendant remains incompetent, it shall include a prognosisregarding the likelihood that he or she will become competent prior to thedismissal of the charges pursuant to subsection (j). Copies of the report shallbe given to the attorney for the state and to the defendant or his or hercounsel.
(l) Defendant's right to petition. A defendantcommitted pursuant to subsection (i)(2) or (i)(3) may at any time petition thecourt to review the state of his or her competency.
(m) Hearing on petition. Upon receipt of a petitionpursuant to subsection (k) or (l) and appropriate notice to the defendant, thestate, and the director, the court shall hold a hearing at which the partiesmay introduce evidence as to the defendant's competency, including any reportsof the director, and the defendant may testify, confront witnesses, and presentevidence as to his or her competency and prognosis. On the basis of theevidence, 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 existsthat he or she will become competent prior to the dismissal of the chargespursuant 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 defendantis incompetent and that a reasonable likelihood exists that he or she willbecome competent prior to the dismissal of the charges pursuant to subsection(j), it shall order continuation of the commitment of the defendant. If thecourt finds that the defendant is incompetent and that a reasonable likelihooddoes not exist that he or she will become competent prior to the dismissal ofthe charges pursuant to subsection (j), it shall order that thirty (30) daysthereafter the defendant be discharged from detention under the order ofcommitment. Upon entry of the order the state may commence proceedings seekingto commit the defendant pursuant to § 40.1-5-8.
(n) Statements inadmissible. No statements made by adefendant in the course of an examination conducted pursuant to subsection (d)or during a hearing conducted pursuant to subsection (i) or (m) shall beadmissible in evidence against the defendant in any criminal action on anyissue other than his or her mental condition. The statements shall beadmissible on the issue of his or her mental condition even though they mightotherwise be deemed to be privileged communications.
(o) Disposition of charges. The court may, at anytime, proceed to a disposition of the charges pending against a defendant whohas been committed pursuant to subsection (i)(2) or (i)(3) if the factual andlegal issues involved can be resolved without regard to the competency of thedefendant.
§ 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, anauthorized assistant attorney general, or such other person as may beauthorized by law to act as a representative of the state in a criminalproceeding;
(2) "Competent" or "competency" means mental ability to standtrial. A person is mentally competent to stand trial if he or she is able tounderstand the character and consequences of the proceedings against him or herand 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 ofmental health, retardation, and hospitals;
(5) "Incompetent" or "incompetency" means mentallyincompetent to stand trial. A person is mentally incompetent to stand trial ifhe or she is unable to understand the character and consequences of theproceedings against him or her or is unable properly to assist in his or herdefense;
(b) Presumption of competency. A defendant is presumedcompetent. The burden of proving that the defendant is not competent shall beby a preponderance of the evidence, and the burden of going forward with theevidence shall be on the party raising the issue. The burden of going forwardshall be on the state if the court raises the issue.
(c) Request for examination. If at any time during acriminal proceeding, prior to the imposition of sentence, it appears that thedefendant is not competent, counsel for the defendant or the state, or thecourt, on its own motion, may request an examination to determine thedefendant's competency.
(d) Examination of defendant. (1) If the court findsthat the request for examination is justified, the court shall order anexamination of the defendant. The scope of the examination shall be limited tothe question of whether the defendant is competent.
(2) The examination shall take place on an outpatient basisif the defendant is to be released on bail or recognizance. If the defendant isordered confined at the adult correctional institutions, the examination shalltake place at that facility. The department shall appoint or designate thephysician(s) who will conduct the examinations.
(3) If the defendant is ordered confined to the adultcorrectional institutions, the physician shall complete the examination withinfive (5) days. If the physician determines that the defendant is incompetent tostand trial, the defendant shall be immediately transferred to the institute ofmental 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 orderedshall be entitled to release on bail or recognizance to the same extent and onthe same terms and conditions as if the issue of competency had not been raised.
(2) The court may order the defendant to appear at adesignated time and place for outpatient examination, and such an appearancemay be made a condition of pretrial release.
(f) Reports of examining physicians. Each examiningphysician shall prepare a report, in writing, in which he or she shall statehis or her findings concerning the defendant's competency together with themedical and other data upon which his or her findings are based. The reportshall be filed with the court within ten (10) days if the defendant was orderedconfined at the adult correctional institutions and as soon as practicable ifthe defendant was released on bail or recognizance and copies given to theattorney for the state and to the defendant or his or her counsel.
(g) Hearing. Upon receipt of the report andappropriate notice to the parties, the court shall hold a hearing unless thereport concludes that the defendant is competent and the defendant and theattorney for the state in open court state in writing their assent to thefindings. At the hearing, the report shall be introduced, other evidencebearing on the defendant's competence may be introduced by the parties, and thedefendant may testify, confront witnesses, and present evidence on the issue ofhis 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 thecourt finds, after the hearing, that a defendant is competent it shall proceedwith the criminal case.
(2) If the court finds that a defendant is incompetent, itshall commit him or her to the custody of the director for the purpose ofdetermining whether or not the defendant is likely to imperil the peace andsafety of the people of the state or the safety of himself or herself andwhether the defendant will regain competency within the maximum period of anyplacement under this chapter.
(3) Not later than fifteen (15) days from the date of theorder of commitment, the director shall prepare and file with the court awritten report in which he or she shall state his or her opinion regarding thedefendant's dangerousness, the likelihood of the defendant becoming competentto stand trial within the maximum period of any placement order and therecommendations of the department regarding appropriate care and treatment ofthe defendant.
(4) In the event the director is unable to complete theexamination of the person in time to render his or her report within thefifteen (15) day period, he or she shall report that fact, in writing, to thecourt with a statement of the reasons why the examination and report could notbe completed within the prescribed period. A copy of the director's statementshall be given to the attorney general and to the defendant or his or hercounsel, any of whom may respond in writing, or if the court deems itappropriate, orally, to the director's statement. The court may thereupon enteran order extending for an additional twenty (20) days the time in which thedirector is to file his or her report.
(i) Hearing. (1) Upon receipt of the report andappropriate notice to the director, the attorney general and the defendant orhis or her counsel, the court shall hold a hearing at which the report shall beintroduced, other evidence bearing on the question of the mental condition ofthe 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 incompetentmay be placed on outpatient status without imperiling the peace or safety ofthe public or the safety of himself or herself, it may commit the defendant toan appropriate outpatient facility which agrees to provide treatment to thedefendant and to adhere to the requirements of this section, in order that thedefendant may receive treatment to restore or establish his or her competency.
(3) If the court finds that a defendant who is incompetent islikely to imperil the peace or safety of the people of the state or the peaceand safety of himself or herself, it may order the defendant to the facilityestablished pursuant to § 40.1-5.3-1 or to the general wards of theinstitute of mental health, if the director agrees that the defendant should beplaced on the general wards. A person who is ordered to be treated on inpatientstatus shall not be paroled, furloughed, placed on outpatient status or removedfrom a locked facility or otherwise released from the institution where he orshe is being treated except upon petition to the court by the director, onnotice to the attorney general and the defendant or his or her counsel, andafter hearing thereon and entry of an order by a judge of the court authorizingsuch release. The commitment ordered pursuant to this section shall terminateupon 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 pursuantto subsection (j); or
(iii) The charges against the defendant are dismissed or anolle prosequi is entered; or
(iv) The defendant is civilly committed pursuant to §40.1-5-8; or
(v) The court finds there is no reasonable likelihood that inthe foreseeable future the defendant will become competent and his or hercondition is such that he or she cannot properly be committed under §40.1-5-8.
(j) Period of commitment. When a court commits adefendant pursuant to subsection (i)(2) or (i)(3) it shall compute, countingfrom the date of entry to the order of commitment, the date of the expirationof the period of time equal to two thirds ( 2/3) of the maximum term ofimprisonment for the most serious offense with which the defendant is charged.If the maximum term for the most serious offense charged is life imprisonmentor death, the court shall for the purpose of computation deem such offense tobe punishable by a maximum term of thirty (30) years. In the order ofcommitment, the court shall provide that if, on the date so computed, thedefendant is still committed under the order, the charges against him or hershall be dismissed.
(k) Periodic review. The director shall petition thecourt to review the state of competency of a defendant committed pursuant tosubsection (i)(2) or (i)(3) not later than six (6) months from the date of theorder of commitment and every six (6) months thereafter, or when the directorbelieves the defendant is no longer incompetent, whichever occurs first.Outpatient facilities which are providing treatment to defendants in accordancewith subsection (i)(2) shall prepare reports to be submitted to the director inaccordance with the requirements of this section. The director shall attach tothe petition a report on the condition of the defendant. If the reportindicates that the defendant remains incompetent, it shall include a prognosisregarding the likelihood that he or she will become competent prior to thedismissal of the charges pursuant to subsection (j). Copies of the report shallbe given to the attorney for the state and to the defendant or his or hercounsel.
(l) Defendant's right to petition. A defendantcommitted pursuant to subsection (i)(2) or (i)(3) may at any time petition thecourt to review the state of his or her competency.
(m) Hearing on petition. Upon receipt of a petitionpursuant to subsection (k) or (l) and appropriate notice to the defendant, thestate, and the director, the court shall hold a hearing at which the partiesmay introduce evidence as to the defendant's competency, including any reportsof the director, and the defendant may testify, confront witnesses, and presentevidence as to his or her competency and prognosis. On the basis of theevidence, 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 existsthat he or she will become competent prior to the dismissal of the chargespursuant 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 defendantis incompetent and that a reasonable likelihood exists that he or she willbecome competent prior to the dismissal of the charges pursuant to subsection(j), it shall order continuation of the commitment of the defendant. If thecourt finds that the defendant is incompetent and that a reasonable likelihooddoes not exist that he or she will become competent prior to the dismissal ofthe charges pursuant to subsection (j), it shall order that thirty (30) daysthereafter the defendant be discharged from detention under the order ofcommitment. Upon entry of the order the state may commence proceedings seekingto commit the defendant pursuant to § 40.1-5-8.
(n) Statements inadmissible. No statements made by adefendant in the course of an examination conducted pursuant to subsection (d)or during a hearing conducted pursuant to subsection (i) or (m) shall beadmissible in evidence against the defendant in any criminal action on anyissue other than his or her mental condition. The statements shall beadmissible on the issue of his or her mental condition even though they mightotherwise be deemed to be privileged communications.
(o) Disposition of charges. The court may, at anytime, proceed to a disposition of the charges pending against a defendant whohas been committed pursuant to subsection (i)(2) or (i)(3) if the factual andlegal issues involved can be resolved without regard to the competency of thedefendant.
