1     
COMPETENCY TO STAND TRIAL AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Lincoln Fillmore

5     
House Sponsor: Edward H. Redd

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to a defendant's competency to stand trial.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     establishes procedures for determining the competency of a defendant charged with
14     a misdemeanor;
15          ▸     adds and modifies time frames for evaluations, reports, and court hearings relating
16     to competency to stand trial determinations;
17          ▸     clarifies standards for restoration treatment and competency review; and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          62A-1-104, as last amended by Laws of Utah 2017, Chapter 331
26          62A-1-108.5, as last amended by Laws of Utah 2012, Chapters 316 and 347
27          77-15-1, as last amended by Laws of Utah 2000, Chapter 256
28          77-15-2, as last amended by Laws of Utah 1994, Chapter 162
29          77-15-3, as last amended by Laws of Utah 1994, Chapter 162
30          77-15-4, as last amended by Laws of Utah 1994, Chapter 162
31          77-15-5, as last amended by Laws of Utah 2016, Chapter 115
32          77-15-6, as last amended by Laws of Utah 2012, Chapter 109
33          77-15-6.5, as last amended by Laws of Utah 2008, Chapter 212
34          77-15-7, as repealed and reenacted by Laws of Utah 1994, Chapter 162
35          77-15-9, as last amended by Laws of Utah 1994, Chapter 162
36     ENACTS:
37          77-15-3.5, Utah Code Annotated 1953
38     

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 62A-1-104 is amended to read:
41          62A-1-104. Definitions.
42          (1) As used in this title:
43          (a) "Competency evaluation" means the same as that term is defined in Section
44     77-15-2.
45          [(a)] (b) "Concurrence of the board" means agreement by a majority of the members of
46     a board.
47          [(b)] (c) "Department" means the Department of Human Services established in
48     Section 62A-1-102.
49          [(c)] (d) "Executive director" means the executive director of the department,
50     appointed under Section 62A-1-108.
51          (e) "Forensic evaluator" means the same as that term is defined in Section 77-15-2.
52          [(d)] (f) "System of care" means a broad, flexible array of services and supports that:
53          (i) serves a child with or who is at risk for complex emotional and behavioral needs;
54          (ii) is community based;
55          (iii) is informed about trauma;
56          (iv) builds meaningful partnerships with families and children;
57          (v) integrates service planning, service coordination, and management across state and
58     local entities;
59          (vi) includes individualized case planning;
60          (vii) provides management and policy infrastructure that supports a coordinated
61     network of interdepartmental service providers, contractors, and service providers who are
62     outside of the department; and
63          (viii) is guided by the type and variety of services needed by a child with or who is at
64     risk for complex emotional and behavioral needs and by the child's family.
65          (2) The definitions provided in Subsection (1) are to be applied in addition to
66     definitions contained throughout this title that are applicable to specified chapters or parts.
67          Section 2. Section 62A-1-108.5 is amended to read:
68          62A-1-108.5. Mental illness and intellectual disability examinations --
69     Responsibilities of the department.
70          (1) In accomplishing [its duties to conduct mental illness and intellectual disability
71     examinations] the department's duties to conduct a competency evaluation under Title 77, Utah
72     Code of Criminal Procedure, and a juvenile competency [evaluations pursuant to] evaluation
73     under Title 78A, Chapter 6, Juvenile Court Act, the department shall proceed as outlined in this
74     section and within appropriations authorized by the Legislature. [The executive director may
75     delegate the executive director's responsibilities under this section to one or more divisions
76     within the department.]
77          (2) When the department is ordered by [the district] a court to conduct a [mental illness
78     or intellectual disability examination the executive director] competency evaluation, the
79     department shall[:(a) direct that the examination be performed at the Utah State Hospital; or(b)
80     designate at least one examiner,] designate a forensic evaluator, selected under Subsection (4),
81     to [examine] evaluate the defendant in the defendant's current custody or status.
82          (3) When the department is ordered by the juvenile court to conduct a juvenile
83     competency evaluation [pursuant to] under Title 78A, Chapter 6, Juvenile Court Act, the
84     [executive director] department shall:
85          (a) designate an examiner selected pursuant to Subsection (4) to evaluate the minor;
86     and
87          (b) upon a finding of good cause and order of the court, designate a second examiner to
88     evaluate the minor.
89          (4) The department shall establish criteria, in consultation with the Commission on
90     Criminal and Juvenile Justice, and shall contract with persons [or organizations] to conduct
91     [mental illness and intellectual disability or related condition,] competency evaluations and
92     juvenile competency evaluations under Subsections (2)[(b)] and (3)(b). In making this
93     selection, the department shall follow the provisions of Title 63G, Chapter 6a, Utah
94     Procurement Code.
95          (5) Nothing in this section prohibits the [executive director] department, at the request
96     of defense counsel or a prosecuting attorney in a criminal proceeding under Title 77, Utah
97     Code of Criminal Procedure, and for good cause shown, from proposing a person who has not
98     been previously selected under Subsection (4) to contract with the department to conduct the
99     evaluation. In selecting that person, the criteria of the department established under Subsection
100     (4) and the provisions of Title 63G, Chapter 6a, Utah Procurement Code, shall be met.
101          Section 3. Section 77-15-1 is amended to read:
102          77-15-1. Incompetent individual not to be tried for public offense.
103          [No person] An individual who is incompetent to proceed [shall] may not be tried for a
104     public offense.
105          Section 4. Section 77-15-2 is amended to read:
106          77-15-2. Definitions.
107          [For the purposes of this chapter, a person is incompetent to proceed if he is suffering
108     from a mental disorder or mental retardation resulting either in:]
109          [(1) his inability to have a rational and factual understanding of the proceedings against
110     him or of the punishment specified for the offense charged; or]
111          [(2) his inability to consult with his counsel and to participate in the proceedings
112     against him with a reasonable degree of rational understanding.]
113          As used in this chapter:
114          (1) "Competency evaluation" means an evaluation conducted by a forensic evaluator to
115     determine if an individual is competent to stand trial.
116          (2) "Competent to stand trial" means that a defendant has:
117          (a) a rational and factual understanding of the criminal proceedings against the
118     defendant and of the punishment specified for the offense charged; and
119          (b) the ability to consult with the defendant's legal counsel with a reasonable degree of
120     rational understanding in order to assist in the defense.
121          (3) "Department" means the Department of Human Services.
122          (4) "Forensic evaluator" means a licensed mental health professional who is:
123          (a) not involved in the defendant's treatment; and
124          (b) trained and qualified by the department to conduct a competency evaluation, a
125     restoration screening, and a progress toward competency evaluation.
126          (5) "Incompetent to proceed" means that a defendant is not competent to stand trial.
127          (6) "Petition" means a petition to request a court to determine whether a defendant is
128     competent to stand trial.
129          (7) "Progress toward competency evaluation" means an evaluation to determine
130     whether an individual who is receiving restoration treatment is:
131          (a) competent to stand trial;
132          (b) incompetent to proceed but has a substantial probability of becoming competent to
133     stand trial in the foreseeable future; or
134          (c) incompetent to proceed and does not have a substantial probability of becoming
135     competent to stand trial in the foreseeable future.
136          (8) "Restoration screening" means an assessment of an individual determined to be
137     incompetent to stand trial for the purpose of determining the appropriate placement and
138     restoration treatment for the individual.
139          (9) "Restoration treatment" means training and treatment that is:
140          (a) provided to an individual who is incompetent to proceed;
141          (b) tailored to the individual's particular impairment to competency; and
142          (c) limited to the purpose of restoring the individual to competency.
143          Section 5. Section 77-15-3 is amended to read:
144          77-15-3. Petition for inquiry regarding defendant or prisoner -- Filing --
145     Contents.
146          (1) [Whenever a person] When a defendant charged with a public offense or serving a
147     sentence of imprisonment is [or becomes] incompetent to proceed, [as defined in this chapter, a
148     petition may be filed] an individual described in Subsection (2)(b) may file a petition in the
149     district court of the county where the charge is pending or where the [person] defendant is
150     confined.
151          (2) (a) The petition shall contain a certificate that it is filed in good faith and on
152     reasonable grounds to believe the defendant is incompetent to proceed. The petition shall
153     contain a recital of the facts, observations, and conversations with the defendant that have
154     formed the basis for the petition. If filed by defense counsel, the petition [shall contain such
155     information without invading the lawyer-client] may not disclose information in violation of
156     the attorney-client privilege.
157          (b) The petition may be based upon knowledge or information and belief and may be
158     filed by the [party alleged incompetent to proceed] defendant, any person acting on [his] behalf
159     of the defendant, the prosecuting attorney, or any person having custody or supervision over the
160     [person] defendant.
161          Section 6. Section 77-15-3.5 is enacted to read:
162          77-15-3.5. Incompetent to proceed in misdemeanor cases.
163          (1) When a defendant charged with a misdemeanor is incompetent to proceed, a
164     petition may be filed in the district court of the county where the charge is pending or where
165     the defendant is confined.
166          (2) If the most severe charge against a defendant is a misdemeanor and the defendant is
167     adjudicated by a court as incompetent to proceed:
168          (a) the department shall provide restoration treatment to the defendant; and
169          (b) the court may refer the defendant to pretrial diversion services, upon agreement of
170     the prosecution and defense counsel.
171          (3) Unless the prosecutor indicates that civil commitment proceedings will be initiated
172     under Subsection 77-15-6(5)(c), a court shall release a defendant who is incompetent to
173     proceed if:
174          (a) the most severe charge against the defendant is no more severe than a class B
175     misdemeanor;
176          (b) more than 60 days have passed after the day on which the court adjudicated the
177     defendant incompetent to proceed; and
178          (c) the defendant has not been restored to competency.
179          (4) A court may dismiss the charges against a defendant who was released under
180     Subsection (3).
181          Section 7. Section 77-15-4 is amended to read:
182          77-15-4. Court may raise issue of competency at any time.
183          The court in which a charge is pending may raise the issue of [the] a defendant's
184     competency at any time. If raised by the court, the court shall permit counsel for each party
185     [shall be permitted] to address the issue of competency.
186          Section 8. Section 77-15-5 is amended to read:
187          77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of
188     defendant -- Scope of examination and report.
189          [(1) (a) When a petition is filed pursuant to Section 77-15-3 raising the issue of the
190     defendant's competency to stand trial or when the court raises the issue of the defendant's
191     competency pursuant to Section 77-15-4, the court in which proceedings are pending shall stay
192     all proceedings. If the proceedings are in a court other than the district court in which the
193     petition is filed, the district court shall notify that court of the filing of the petition.]
194          [(b) The district court in which the petition is filed:]
195          (1) A court in which criminal proceedings are pending shall stay all criminal
196     proceedings, if:
197          (a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
198          (b) the court raises the issue of the defendant's competency under Section 77-15-4.
199          (2) The court in which the petition described in Subsection (1)(a) is filed:
200          (a) shall inform the court in which criminal proceedings are pending of the petition, if
201     the petition is not filed in the court in which criminal proceedings are pending;
202          [(i)] (b) shall review the allegations of incompetency;
203          [(ii)] (c) may hold a limited hearing solely for the purpose of determining the
204     sufficiency of the petition, if the court finds the petition is not clearly sufficient on its face;
205          [(iii)] (d) shall hold a hearing, if the petition is opposed by either party;
206          [(iv)] (e) may not order an examination of the defendant or order a hearing on the
207     mental condition of the defendant unless the court finds that the allegations in the petition raise
208     a bona fide doubt as to the defendant's competency to stand trial; and
209          [(v) shall order an examination of the defendant and a hearing on the defendant's
210     mental condition]
211          (f) if the court finds that the allegations raise a bona fide doubt as to the defendant's
212     competency to stand trial[.], shall order:
213          (i) the department to have the defendant evaluated by one forensic evaluator, if:
214          (A) the most severe charge against the defendant is a misdemeanor; or
215          (B) the defendant is charged with a felony but is not charged with a capital felony, and
216     the court determines, based upon the allegations in the petition, that a second competency
217     evaluation is not necessary;
218          (ii) the department to have the defendant evaluated by two forensic evaluators, if:
219          (A) the defendant is charged with a capital felony; or
220          (B) the defendant is charged with a felony but is not charged with a capital felony, and
221     the court determines, based upon the allegations in the petition, that a second competency
222     evaluation is necessary; and
223          (iii) the defendant to be evaluated by an additional forensic evaluator, if requested by a
224     party, who shall:
225          (A) select the additional forensic evaluator; and
226          (B) pay for the costs of the additional forensic evaluator.
227          [(2) (a) After the granting of a petition and prior to a full competency hearing, the court
228     may order the Department of Human Services to examine the person and to report to the court
229     concerning the defendant's mental condition.]
230          [(b) The defendant shall be examined by at least two mental health experts not
231     involved in the current treatment of the defendant.]
232          [(c) If the issue is sufficiently raised in the petition or if it becomes apparent that the
233     defendant may be incompetent due to intellectual disability, at least one expert experienced in
234     intellectual disability assessment shall evaluate the defendant. Upon appointment of the
235     experts, the petitioner or other party as directed by the court shall provide information and
236     materials to the examiners relevant to a determination of the defendant's competency and shall
237     provide copies of the charging document, arrest or incident reports pertaining to the charged
238     offense, known criminal history information, and known prior mental health evaluations and
239     treatments.]
240          [(d) The prosecuting and defense attorneys shall cooperate in providing the relevant
241     information and materials to the examiners, and the court may make the necessary orders to
242     provide the information listed in Subsection (2)(c) to the examiners. The court may provide in
243     its order for a competency examination of a defendant]
244          (3) (a) If the petition or other information sufficiently raises concerns that the
245     defendant may have intellectual or developmental disabilities, at least one forensic evaluator
246     who is experienced in intellectual or developmental disability assessments shall conduct a
247     competency evaluation.
248          (b) The petitioner or other party, as directed by the court, shall provide to the forensic
249     evaluator information and materials relevant to a determination of the defendant's competency,
250     including the charging document, arrest or incident reports pertaining to the charged offense,
251     known criminal history information, and known prior mental health evaluations and treatments.
252          (c) For purposes of a competency evaluation, a court may order that custodians of
253     mental health records pertaining to the defendant [shall] provide those records to [the] a
254     [examiners] forensic evaluator without the need for consent of the defendant [or further order
255     of the court].
256          (d) An order for a competency evaluation may not contain an order for any other
257     inquiry into the mental state of the defendant.
258          [(3) During the examination under Subsection (2)]
259          (4) Pending a competency evaluation, unless the court or the [executive director of the]
260     department directs otherwise, the defendant shall be retained in the same custody or status [he]
261     that the defendant was in at the time the examination was ordered.
262          [(4) The experts shall in the conduct of their examination and in their report to the
263     court consider and address, in addition to any other factors determined to be relevant by the
264     experts:]
265          (5) In the conduct of a competency evaluation, a progress toward competency
266     evaluation, and in a report to the court, a forensic evaluator shall consider and address, in
267     addition to any other factors determined to be relevant by the forensic evaluator:
268          (a) the defendant's present [capacity] ability to:
269          (i) rationally and factually understand the criminal proceedings against the defendant;
270          (ii) consult with the defendant's legal counsel with a reasonable degree of rational
271     understanding in order to assist in the defense;
272          [(i) comprehend and appreciate]
273          (iii) understand the charges or allegations against the defendant;
274          [(ii) disclose to counsel pertinent]
275          (iv) communicate facts, events, and states of mind;
276          [(iii) comprehend and appreciate]
277          (v) understand the range [and nature] of possible penalties[, if applicable, that may be
278     imposed in the proceedings] associated with the charges or allegations against the defendant;
279          [(iv)] (vi) engage in reasoned choice of legal strategies and options;
280          [(v)] (vii) understand the [adversary] adversarial nature of the proceedings against the
281     defendant;
282          [(vi)] (viii) manifest [appropriate courtroom] behavior sufficient to allow the court to
283     proceed; and
284          [(vii)] (ix) testify relevantly, if applicable;
285          (b) the impact of the mental disorder or intellectual disability, if any, on the nature and
286     quality of the defendant's relationship with counsel;
287          (c) if psychoactive medication is currently being administered:
288          (i) whether the medication is necessary to maintain the defendant's competency; and
289          (ii) [the effect of] whether the medication[, if any,] may have an effect on the
290     defendant's demeanor [and], affect, and ability to participate in the proceedings; and
291          (d) whether the defendant is exhibiting false or exaggerated physical or psychological
292     symptoms relevant to the defendant's capacity to stand trial.
293          [(5)] (6) If the [expert's] forensic evaluator's opinion is that the defendant is
294     incompetent to proceed, the [expert] forensic evaluator shall indicate in the report to the court:
295          (a) [which of the above factors contributes] the factors that contribute to the
296     defendant's incompetency[;(b)], including the nature of the defendant's mental disorder or
297     intellectual or developmental disability, if any, and its relationship to the factors contributing to
298     the defendant's incompetency; and
299          [(c) the treatment or treatments appropriate and available;]
300          [(d) the defendant's capacity to give informed consent to treatment to restore
301     competency; and]
302          [(e) any diagnostic instruments, methods, and observations used by the expert to
303     determine whether or not the defendant is exhibiting false or exaggerated physical or
304     psychological symptoms relevant to the defendant's capacity to stand trial and the expert's
305     opinion as to the significance of any false or exaggerated symptoms regarding the defendant's
306     capacity.]
307          (b) whether there is a substantial probability that restoration treatment may, in the
308     foreseeable future, bring the defendant to competency to stand trial, or that the defendant
309     cannot become competent to stand trial in the foreseeable future.
310          [(6) The experts examining the defendant]
311          (7) (a) A forensic evaluator shall provide an initial report to the court and the
312     prosecuting and defense attorneys within 30 days of the receipt of the court's order. The report
313     shall inform the court of the examiner's opinion concerning the competency of the defendant to
314     stand trial[, or, in the alternative, the examiner may inform the court in writing that additional
315     time is needed to complete the report. If the examiner informs the court that additional time is
316     needed, the examiner shall have up to an additional 30 days to provide the report to the court
317     and counsel. The examiner shall provide the report within 60 days from the receipt of the
318     court's order unless, for good cause shown, the court authorizes an additional period of time to
319     complete the examination and provide the report].
320          (b) (i) If the forensic evaluator is unable to complete the report in the time specified in
321     Subsection (7)(a), the forensic evaluator shall give written notice to the court.
322          (ii) A forensic evaluator who provides the notice described in Subsection (7)(b)(i) shall
323     receive a 15-day extension, giving the forensic evaluator a total of 45 days after the day on
324     which the forensic evaluator received the court's order to conduct a competency evaluation and
325     file a report.
326          (iii) The court may further extend the deadline for completion of the evaluation and
327     report if the court determines that there is good cause for the extension.
328          (iv) Upon receipt of an extension described in Subsection (7)(b)(iii), the forensic
329     evaluator shall file the report as soon as reasonably possible.
330          [(7)] (8) Any written report submitted by [the experts] a forensic evaluator shall:
331          (a) identify the [specific matters referred] case ordered for evaluation by the case
332     number;
333          (b) describe the procedures, techniques, and tests used in the examination and the
334     purpose or purposes for each;
335          (c) state the [expert's] forensic evaluator's clinical observations, findings, and opinions
336     on each issue referred for examination by the court, and indicate specifically those issues, if
337     any, on which the [expert] forensic evaluator could not give an opinion; and
338          (d) identify the sources of information used by the [expert] forensic evaluator and
339     present the basis for the [expert's] forensic evaluator's clinical findings and opinions.
340          [(8)] (9) (a) Any statement made by the defendant in the course of any competency
341     examination, whether the examination is with or without the consent of the defendant, any
342     testimony by [the expert] a forensic evaluator based upon the statement, and any other fruits of
343     the statement may not be admitted in evidence against the defendant in any criminal proceeding
344     except on an issue respecting mental condition on which the defendant has introduced
345     evidence. The evidence may be admitted, however, where relevant to a determination of the
346     defendant's competency.
347          (b) [Prior to] Before examining the defendant, [examiners should] the forensic
348     evaluator shall specifically advise the defendant of the limits of confidentiality as provided
349     under Subsection [(8)] (9)(a).
350          [(9) (a) When the report is received]
351          (10) (a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a
352     [mental] competency hearing. The hearing shall be held [in] not less than [five] 5 and not more
353     than 15 days[, unless the court enlarges the time for good cause.] after the day on which the
354     court received the forensic evaluators' reports, unless for good cause the court sets a later date.
355          (b) Any person [or organization] directed by the department to conduct the
356     [examination] competency evaluation may be subpoenaed to testify at the hearing. [If the
357     experts are in conflict as to the competency of the defendant, all experts should be called to
358     testify at the hearing if reasonably available. A conflict in the opinions of the experts does not
359     require the appointment of an additional expert unless the court determines the appointment to
360     be necessary.]
361          (c) The court may call any [examiner] forensic evaluator to testify at the hearing who is
362     not called by the parties. If the court calls [an examiner] a forensic evaluator, counsel for the
363     parties may cross-examine the [expert] forensic evaluator.
364          (d) If the forensic evaluators are in conflict as to the competency of the defendant, all
365     forensic evaluators should be called to testify at the hearing if reasonably available. A conflict
366     in the opinions of the forensic evaluators does not require the appointment of an additional
367     forensic evaluator unless the court determines the appointment to be necessary.
368          [(10)] (11) (a) A [person] defendant shall be presumed competent to stand trial unless
369     the court, by a preponderance of the evidence, finds the [person] defendant incompetent to
370     proceed. The burden of proof is upon the proponent of incompetency at the hearing.
371          (b) An adjudication of [incompetency] incompetent to proceed does not operate as an
372     adjudication of incompetency to give informed consent for medical treatment or for any other
373     purpose, unless specifically set forth in the court order.
374          [(11)] (12) In determining the defendant's competency to stand trial, the court shall
375     consider the totality of the circumstances, which may include the testimony of lay witnesses, in
376     addition to the [expert testimony, studies, and reports provided under this section] forensic
377     evaluator's report, testimony, and studies.
378          [(12) (a)] (13) If the court finds the defendant incompetent to [stand trial, its order shall
379     contain] proceed:
380          (a) the court shall issue the order described in Subsection 77-15-6(1), which shall:
381          (i) include findings addressing each of the factors in [Subsections (4)(a) and (b).]
382     Subsection (5)(a);
383          [The order issued pursuant to Subsection 77-15-6(1) which the court sends to the
384     facility where the defendant is committed or to the person who is responsible for assessing the
385     defendant's progress toward competency shall be provided contemporaneously with the
386     transportation and commitment order of the defendant, unless exigent circumstances require
387     earlier commitment in which case the court shall forward the order within five working days of
388     the order of transportation and commitment of the defendant.]
389          [(b) The order finding the defendant incompetent to stand trial shall be accompanied
390     by:]
391          [(i) copies of the reports of the experts filed with the court pursuant to the order of
392     examination if not provided previously;]
393          [(ii) copies of any of the]
394          (ii) include a transportation order, if necessary;
395          (iii) be accompanied by the forensic evaluators' reports, any psychiatric, psychological,
396     or social work reports submitted to the court relative to the mental condition of the defendant[;
397     and (iii)], and any other documents made available to the court by either the defense or the
398     prosecution, pertaining to the defendant's current or past mental condition[.]; and
399          (iv) be sent by the court to the department; and
400          (b) the prosecuting attorney shall provide to the department:
401          (i) the charging document and probable cause statement, if any;
402          (ii) arrest or incident reports prepared by law enforcement and pertaining to the
403     charged offense; and
404          (iii) additional supporting documents.
405          [(13) (a) If the court finds it necessary to order the defendant transported prior to the
406     completion of findings and compilation of documents required under Subsection (12), the
407     transportation and commitment order delivering the defendant to the Utah State Hospital, or
408     other mental health facility as directed by the executive director of the Department of Human
409     Services or a designee, shall indicate that the defendant's commitment is based upon a finding
410     of incompetency, and the mental health facility's copy of the order shall be accompanied by the
411     reports of any experts filed with the court pursuant to the order of examination.]
412          [(b) The executive director of the Department of Human Services or a designee may
413     refuse to accept a defendant as a patient unless the defendant is accompanied by a
414     transportation and commitment order which is accompanied by the reports.]
415          [(14) Upon a finding of incompetency to stand trial by the court, the prosecuting and
416     defense attorneys shall provide information and materials relevant to the defendant's
417     competency to the facility where the defendant is committed or to the person responsible for
418     assessing the defendant's progress towards competency. In addition to any other materials, the
419     prosecuting attorney shall provide:]
420          [(a) copies of the charging document and supporting affidavits or other documents used
421     in the determination of probable cause;]
422          [(b) arrest or incident reports prepared by a law enforcement agency pertaining to the
423     charged offense; and]
424          [(c) information concerning the defendant's known criminal history.]
425          [(15)] (14) The court may make any reasonable order to [insure] ensure compliance
426     with this section.
427          [(16)] (15) Failure to comply with this section does not result in the dismissal of
428     criminal charges.
429          Section 9. Section 77-15-6 is amended to read:
430          77-15-6. Commitment on finding of incompetency to stand trial -- Subsequent
431     hearings -- Notice to prosecuting attorneys.
432          (1) (a) Except as provided in Subsection (5), if after a hearing[, the defendant is found]
433     a court finds a defendant to be incompetent to [stand trial] proceed, the court shall order the
434     defendant committed to the [custody of the executive director of the Department of Human
435     Services or a designee for the purpose of treatment intended to restore the defendant to
436     competency] department for restoration treatment.
437          (b) The court may recommend but may not order placement of the defendant. The
438     court may, however, order that the defendant be placed in a secure setting rather than a
439     nonsecure setting. [The director or a] Following restoration screening, the department's
440     designee shall designate and inform the court of the specific placement [of the defendant
441     during the period of evaluation and treatment to restore competency] and restoration treatment
442     program for the defendant.
443          (c) Restoration treatment shall be of sufficient scope and duration to:
444          (i) restore the individual to competency; or
445          (ii) determine whether the individual can be restored to competency in the foreseeable
446     future.
447          (d) A defendant whom a court determines is incompetent to proceed may not be held
448     for restoration treatment longer than:
449          (i) the time reasonably necessary to determine whether there is a substantial probability
450     that the defendant will become competent to stand trial in the foreseeable future, or that the
451     defendant cannot become competent to stand trial in the foreseeable future; and
452          (ii) the maximum period of incarceration that the defendant could receive if the
453     defendant were convicted of the most severe offense of the offenses charged.
454          [(2) The examiner or examiners designated by the executive director to assess the
455     defendant's progress toward competency may not be involved in the routine treatment of the
456     defendant. The examiner or examiners shall provide a full report to the court and prosecuting
457     and defense attorneys within 90 days of arrival of the defendant at the treating facility. If any
458     examiner]
459          (2) (a) A defendant who is receiving restoration treatment shall receive a progress
460     toward competency evaluation, by:
461          (i) a forensic evaluator, designated by the department; and
462          (ii) an additional forensic evaluator, if requested by a party and paid for by the
463     requesting party.
464          (b) A forensic evaluator shall complete a progress toward competency evaluation and
465     submit a report within 90 days after the day on which the forensic evaluator receives the
466     commitment order. If the forensic evaluator is unable to complete the [assessment] report
467     within 90 days, [that examiner] the forensic evaluator shall provide to the court and counsel a
468     summary progress [report which] statement that informs the court that additional time is
469     necessary to complete the [assessment] report, in which case the examiner shall have up to an
470     additional [90] 45 days to provide the full report.
471          (c) The [full] report shall [assess]:
472          [(a)] (i) assess whether the defendant is exhibiting false or exaggerated physical or
473     psychological symptoms[, and shall report:];
474          [(i)] (ii) describe any diagnostic instruments, methods, and observations used by the
475     examiner to make the determination; [and]
476          [(ii) the examiner's]
477          (iii) state the forensic evaluator's opinion as to the effect of any false or exaggerated
478     symptoms on the defendant's [capacity] competency to stand trial;
479          [(b)] (iv) assess the facility's or program's capacity to provide appropriate restoration
480     treatment for the defendant;
481          [(c)] (v) assess the nature of [treatments] restoration treatment provided to the
482     defendant;
483          [(d)] (vi) assess what progress the defendant has made toward competency restoration,
484     [has been made] with respect to the factors identified by the court in its initial order;
485          [(e)] (vii) describe the defendant's current level of [mental disorder or mental
486     retardation] intellectual or developmental disability and need for treatment, if any; and
487          [(f)] (viii) assess the likelihood of restoration [of competency and] to competency, the
488     amount of time estimated to achieve [it] competency, or the amount of time estimated to
489     determine whether restoration to competency may be achieved.
490          (3) The court on its own motion or upon motion by either party or [by the executive
491     director] the department may appoint an additional [mental health examiners to examine the
492     defendant and advise the court on the defendant's current mental status and progress toward
493     competency restoration] forensic evaluator to conduct a progress toward competency
494     evaluation. If the court appoints an additional forensic evaluator upon motion of a party, that
495     party shall pay the costs of the additional forensic evaluator.
496          (4) [Upon receipt of the full report, the court shall hold a hearing to determine the
497     defendant's current status.] Within 15 days after the day on which the court receives the
498     forensic evaluator's report of the progress toward competency evaluation, the court shall hold a
499     hearing to review the defendant's competency. At the hearing, the burden of proving that the
500     defendant is competent to stand trial is on the proponent of competency. Following the
501     hearing, the court shall determine by a preponderance of evidence whether the defendant is:
502          (a) competent to stand trial;
503          (b) incompetent to [stand trial] proceed, with a substantial probability that the
504     defendant may become competent in the foreseeable future; or
505          (c) incompetent to [stand trial] proceed, without a substantial probability that the
506     defendant may become competent in the foreseeable future.
507          (5) (a) If the court [enters a finding pursuant to Subsection (4)(a),] determines that the
508     defendant is competent to stand trial, the court shall:
509          (i) proceed with the trial or other procedures as may be necessary to adjudicate the
510     charges[.]; and
511          (ii) order that the defendant be returned to the placement and status that the defendant
512     was in at the time when the petition for the adjudication of competency was filed, unless the
513     court determines that a different placement is more appropriate.
514          (b) [If the court enters a finding pursuant to Subsection (4)(b), the court may order that
515     the defendant remain committed to the custody of the executive director of the Department of
516     Human Services or a designee for the purpose of treatment intended to restore the defendant to
517     competency] If the court determines that the defendant is not competent to proceed but that
518     there is a substantial probability that the defendant may become competent in the foreseeable
519     future, the court may order that the defendant remain committed to the department or the
520     department's designee for the purpose of restoration treatment.
521          (c) If the court [enters a finding pursuant to Subsection (4)(c)] determines that the
522     defendant is incompetent to proceed and that there is not a substantial probability that the
523     defendant may become competent in the foreseeable future, the court shall order the defendant
524     released from [the custody of the director] commitment to the department, unless the
525     prosecutor informs the court that commitment proceedings pursuant to Title 62A, Chapter 5,
526     Services for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental
527     Health Act, will be initiated. These commitment proceedings must be initiated within seven
528     days [after the court's order entering the finding in Subsection (4)(c), unless the court enlarges
529     the time for good cause shown. The defendant may be ordered to remain in the custody of the
530     director until commitment proceedings have been concluded.] after the day on which the court
531     makes the determination described in Subsection (4)(c), unless the court finds that there is
532     good cause to delay the initiation of the civil commitment proceedings. The court may order
533     the defendant to remain in the commitment of the department until the civil commitment
534     proceedings conclude. If the defendant is civilly committed, [the court which entered the order
535     pursuant to Subsection (4)(c), shall be notified by the director] the department shall notify the
536     court that adjudicated the defendant incompetent to proceed at least 10 days [prior to] before
537     any release of the committed [person] individual.
538          [(6) If the defendant is recommitted to the department pursuant to Subsection (5)(b),
539     the court shall hold a hearing one year following the recommitment.]
540          [(7) At the hearing held pursuant to Subsection (6), except for defendants charged with
541     the crimes listed in Subsection (8), a defendant who has not been restored to competency shall
542     be ordered released or temporarily detained pending civil commitment proceedings under the
543     same terms as provided in Subsection (5)(c).]
544          (6) If a court, under Subsection (5)(b), extends a defendant's commitment, the court
545     shall schedule a competency review hearing for the earlier of:
546          (a) the department's best estimate of when the defendant may be restored to
547     competency; or
548          (b) three months after the day on which the court determined under Subsection (5)(b)
549     to extend the defendant's commitment.
550          (7) If a defendant is not competent to proceed by the day of the competency review
551     hearing that follows the extension of a defendant's commitment, a court shall:
552          (a) except for a defendant charged with crimes listed in Subsection (8), order a
553     defendant:
554          (i) released; or
555          (ii) temporarily detained pending civil commitment proceedings under the same terms
556     as described in Subsection (5)(c); and
557          (b) terminate the defendant's commitment to the department for restoration treatment.
558          (8) If the defendant has been charged with aggravated murder, murder, attempted
559     murder, manslaughter, or a first degree felony and the court determines that the defendant is
560     making reasonable progress towards restoration of competency at the time of the hearing held
561     pursuant to Subsection (6), the court may [order the defendant recommitted] extend the
562     commitment for a period not to exceed [18] 9 months for the purpose of [treatment to restore
563     the defendant to competency] restoration treatment, with a mandatory review hearing at the end
564     of the [18-month] 9-month period.
565          [(9) Except for defendants charged with aggravated murder or murder, a defendant who
566     has not been restored to competency at the time of the hearing held pursuant to Subsection (8)
567     shall be ordered released or temporarily detained pending civil commitment proceedings under
568     the same terms as provided in Subsection (5)(c).]
569          (9) If at the 9-month review hearing described in Subsection (8), the court determines
570     that the defendant is not competent to proceed, the court shall:
571          (a) order the defendant, except for a defendant charged with aggravated murder or
572     murder, to be:
573          (i) released; or
574          (ii) temporarily detained pending civil commitment proceedings under the same terms
575     as provided in Subsection (5)(c); and
576          (b) terminate the defendant's commitment to the department for restoration treatment.
577          (10) If the defendant has been charged with aggravated murder or murder and the court
578     determines that the defendant is making reasonable progress towards restoration of competency
579     at the time of the [mandatory review hearing held pursuant to] 9-month review hearing
580     described in Subsection (8), the court may [order the defendant recommitted] extend the
581     commitment for a period not to exceed [36] 24 months for the purpose of [treatment to restore
582     competency] restoration treatment.
583          (11) If the [defendant is recommitted to the department pursuant to] court extends the
584     defendant's commitment term under Subsection (10), the court shall hold a hearing no [later
585     than at 18-month] less frequently than at 12-month intervals following the [recommitment]
586     extension for the purpose of determining the defendant's competency status.
587          [(12) A defendant who has not been restored to competency at the expiration of the
588     additional 36-month commitment period ordered pursuant to Subsection (10) shall be ordered
589     released or temporarily detained pending civil commitment proceedings under the same terms
590     as provided in Subsection (5)(c).]
591          (12) If, at the end of the 24-month commitment period described in Subsection (10),
592     the court determines that the defendant is not competent to proceed, the court shall:
593          (a) order the defendant to be:
594          (i) released; or
595          (ii) temporarily detained pending civil commitment proceedings under the same terms
596     as provided in Subsection (5)(c); and
597          (b) terminate the defendant's commitment to the department for restoration treatment.
598          [(13) (a) In no event may the maximum period of detention under this section exceed
599     the maximum period of incarceration which the defendant could receive if the defendant were
600     convicted of the charged offense.]
601          [(b) This Subsection (13) does not preclude pursuing involuntary civil commitment nor
602     does it place any time limit on civil commitments.]
603          [(14)] (13) Neither release from a pretrial incompetency commitment under the
604     provisions of this section nor civil commitment requires dismissal of criminal charges. The
605     court may retain jurisdiction over the criminal case and may order periodic reviews [to assess
606     the defendant's competency to stand trial].
607          [(15)] (14) A defendant who is civilly committed pursuant to Title 62A, Chapter 5,
608     Services for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental
609     Health Act, may still be adjudicated competent to stand trial under this chapter.
610          [(16)] (15) (a) The remedy for a violation of the time periods specified in this section,
611     other than those specified in Subsection (5)(c), (7), (9), or (12), [or (13),] shall be a motion to
612     compel the hearing, or mandamus, but not release from detention or dismissal of the criminal
613     charges.
614          (b) The remedy for a violation of the time periods specified in Subsection (5)(c), (7),
615     (9), or (12), or [(13)] is not dismissal of the criminal charges.
616          [(17)] (16) In cases in which the treatment of the defendant is precluded by court order
617     for a period of time, that time period may not be considered in computing time limitations
618     under this section.
619          [(18)] (17) (a) At any time that the defendant becomes competent to stand trial, the
620     clinical director of the hospital [or other facility or the executive director of the Department of
621     Human Services], the department, or the department's designee shall certify that fact to the
622     court.
623          (b) The court shall conduct a competency review hearing:
624          (i) within 15 working days [of the receipt of the clinical director's or executive director's
625     report, unless the court enlarges the time for good cause.] after the day on which the court
626     receives the certification described in Subsection (17)(a); or
627          (ii) within 30 working days after the day on which the court receives the certification
628     described in Subsection (17)(a), if the court determines that more than 15 days are necessary
629     for good cause related to the defendant's competency.
630          [(19)] (18) The court may order a hearing or rehearing at any time on its own motion or
631     upon recommendations of the clinical director of the hospital or other facility or the [executive
632     director of the Department of Human Services] department.
633          [(20)] (19) Notice of a hearing on competency to stand trial shall be given to the
634     prosecuting attorney. If the hearing is held in the county where the defendant is confined,
635     notice shall also be given to the prosecuting attorney for that county.
636          Section 10. Section 77-15-6.5 is amended to read:
637          77-15-6.5. Petition for involuntary medication of incompetent defendant.
638          [(1) As used in this section:]
639          [(a) "Executive director" means the executive director of the Department of Human
640     Services or the executive director's designee.]
641          [(b)] (1) ["Final] As used in this section, "final order" means a court order that
642     determines the rights of the parties and concerning which appellate remedies have been
643     exhausted or the time for appeal has expired.
644          (2) (a) At any time after a defendant has been found incompetent to proceed and has
645     been committed to the [Department of Human Services] department under Section 77-15-6 for
646     [treatment to restore competency, the executive director] restoration treatment, the department
647     shall notify the court, prosecuting attorney, and attorney for the defendant if the [executive
648     director has determined] department determines that the defendant is not responding to
649     restoration treatment and is unlikely to be restored to competency without the involuntary
650     administration of antipsychotic medication.
651          (b) The [executive director] department shall provide the notification under Subsection
652     (2)(a) only if there is no basis for involuntarily medicating the defendant for reasons other than
653     to restore the defendant's competency.
654          (3) In the notice under Subsection (2)(a), the [executive director] department shall state
655     whether [the executive director believes]:
656          (a) medication is necessary to render the defendant competent;
657          (b) medication is substantially likely to render the defendant competent;
658          (c) medication is substantially unlikely to produce side effects which would
659     significantly interfere with the defendant's ability to assist in [his] the defendant's defense;
660          (d) no less intrusive means are available, and whether any of those means have been
661     attempted to render the defendant competent; and
662          (e) medication is medically appropriate and is in the defendant's best medical interest
663     in light of [his] the defendant's medical condition.
664          (4) (a) [Upon receipt of the notice under Subsection (2)(a), the] The court shall conduct
665     a hearing within [30 days, unless the court extends the time for good cause, to determine
666     whether the court should convene a hearing] 15 days, or, for good cause, within 30 days after
667     the day on which the court receives the notice described in Subsection (2)(a), regarding the
668     involuntary medication of the defendant.
669          (b) The prosecuting attorney shall represent the state at any hearing under this section.
670          (c) The court shall consider whether the following factors apply in determining
671     whether the defendant should be involuntarily medicated:
672          (i) important state interests are at stake in restoring the defendant's competency;
673          (ii) involuntary medication will significantly further the important state interests, in
674     that the medication proposed:
675          (A) is substantially likely to render the defendant competent to stand trial; and
676          (B) is substantially unlikely to produce side effects which would significantly interfere
677     with the defendant's ability to assist [the defense counsel in conducting his] in the defendant's
678     defense;
679          (iii) involuntary medication is necessary to further important state interests, because
680     any [alternate] less intrusive treatments are unlikely to achieve substantially the same results;
681     and
682          (iv) the administration of the proposed medication is medically appropriate, as it is in
683     the defendant's best medical interest in light of [his] the defendant's medical condition.
684          (5) In determining whether the proposed treatment is medically appropriate and is in
685     the defendant's best medical interest, the potential penalty the defendant may be subject to, if
686     the defendant is convicted of any charged offense, is not a relevant consideration.
687          (6) (a) If the court finds by clear and convincing evidence that the involuntary
688     administration of antipsychotic medication is appropriate, it shall make findings addressing
689     each of the factors in Subsection (4)(c) and shall issue an order authorizing the [Department of
690     Human Services] department to involuntarily administer antipsychotic medication to the
691     defendant in order to restore [his] the defendant's competency, subject to the periodic reviews
692     and other procedures provided in Section 77-15-6.
693          (b) When issuing an order under Subsection (6)(a), the court shall consider ordering
694     less intrusive means for administering the drugs, such as a court order to the defendant
695     enforceable by the contempt power, before ordering more intrusive methods of involuntary
696     medication.
697          (7) The provisions in Section 77-15-6 establishing time limitations for treatment of
698     incompetent defendants before they must be either released or civilly committed are tolled
699     from the time the [executive director] department gives notice to the court and the parties under
700     Subsection (2) until:
701          (a) the court has issued a final order for the involuntary medication of the defendant,
702     and the defendant has been medicated under that order; or
703          (b) the court has issued a final order that the defendant will not be involuntarily
704     medicated.
705          (8) This section applies only when [the prosecution seeks] an order of involuntary
706     medication is sought solely for the purpose of rendering a defendant competent to [proceed]
707     stand trial.
708          Section 11. Section 77-15-7 is amended to read:
709          77-15-7. Statute of limitations and speedy trial -- Effect of incompetency of
710     defendant.
711          (1) The statute of limitations is tolled during any period in which the defendant is
712     adjudicated incompetent to proceed.
713          (2) Any period of time during which the defendant has been adjudicated incompetent
714     to proceed and any period during which [he] the defendant is being evaluated for competency
715     may not be computed in determining the defendant's speedy trial rights.
716          Section 12. Section 77-15-9 is amended to read:
717          77-15-9. Expenses.
718          (1) In determining the competence of a defendant to proceed, expenses of examination,
719     observation, or treatment, excluding travel to and from any mental health facility, shall be
720     charged to the [Department of Human Services] department when the offense is a state offense.
721     Travel expenses incurred by the defendant shall be charged to the county where prosecution is
722     commenced. Examination of [defendants] a defendant on local ordinance violations shall be
723     charged by the department to the municipality or county commencing the prosecution.
724          (2) When examination is initiated by the court or on motion of the prosecutor,
725     expenses of commitment and treatment of the [person confined to a mental health facility after
726     examination, if he] defendant, if the defendant is determined to be incompetent to proceed,
727     shall also be charged to the department.
728          (3) Expenses of examination, treatment, or confinement in a mental health facility for
729     any [person] individual who has been convicted of a crime and placed in a state correctional
730     facility shall be charged to the Department of Corrections.
731          (4) [If the defendant, after examination, is found to be competent by the court,] If, after
732     evaluation, the court determines that a defendant is competent to stand trial, all subsequent
733     costs are charged to the county commencing prosecution. If the defendant requested the
734     examination and is found to be competent to stand trial by the court, the department may
735     recover the expenses of the examination from the defendant.