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Be Sure to See Our Disclaimers, Limitations & An Invitation -- This is NOT regularly updated
Val's Note: Recognizes that the REAL ISSUE is a BROKEN MENTAL HEALTH SYSTEM.
Council on State Governments (CSG) Justice Center
Re-Thinking Competency to Stand Trial (2021)
Re-Thinking Competency to Stand Trial (2021)
2016 Co Act on Location of Competency Exams -- We learned from Asst. Attorney General Anita Icenogle during our efforts w/ our guy w/ DD & MI while he was in ADSEG in Denver Detention about new procedures to specifically request evaluation @ the CO Mental Health Institute @ PueBlo (CMHIP)
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Determination of Competency in Criminal Proceedings
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COLORADO REVISED STATUTES
*** This document reflects changes current through all laws passed at the First Regular Session of the Sixty-Ninth General Assembly of the State of Colorado (2016) *** TITLE 16. CRIMINAL PROCEEDINGS CODE OF CRIMINAL PROCEDURE ARTICLE 8.5. COMPETENCY TO PROCEED C.R.S. 16-8.5-102 16-8.5-102 Mental Competency to proceed - how & when raised C.R.S. 16-8.5-103 (2016) 16-8.5-103. Determination of competency to proceed (VIA Lexis/Nexis) |
Resource for the System:
Colorado Mental Health Institute at Pueblo (CMHIP) Coordinator of Court Services Main CMHIP phone #: 719-546-4000 |
16-8.5-102. Mental incompetency to proceed - how and when raised
(1) While a defendant is incompetent to proceed, the defendant shall not be tried or sentenced, nor shall the court consider or decide pretrial matters that are not susceptible of fair determination without the personal participation of the defendant. However, a determination that a defendant is incompetent to proceed shall not preclude the furtherance of the proceedings by the court to consider and decide matters, including a preliminary hearing and motions, that are susceptible of fair determination prior to trial and without the personal participation of the defendant. Those proceedings may be later reopened if, in the discretion of the court, substantial new evidence is discovered after and as a result of the restoration to competency of the defendant.
(2) The question of a defendant's competency to proceed shall be raised in the following manner:
(a) If the judge has reason to believe that the defendant is incompetent to proceed, it is the judge's duty to suspend the proceeding and determine the competency or incompetency of the defendant pursuant to section 16-8.5-103.
(b) If either the defense or the prosecution has reason to believe that the defendant is incompetent to proceed, either party may file a motion in advance of the commencement of the particular proceeding. A motion to determine competency shall be in writing and contain a certificate of counsel stating that the motion is based on a good faith doubt that the defendant is competent to proceed. The motion shall set forth the specific facts that have formed the basis for the motion. The motion shall be sealed by the court. If the motion is made by the prosecution, the prosecution shall provide to the defense a copy of the motion. If the motion is made by the defense, the defense shall provide to the prosecution notice of the filing of the motion at the time of filing, and if the defense requests a hearing, the defense shall provide the motion to the prosecution at the time the hearing is requested. The motion may be filed after the commencement of the proceeding if, for good cause shown, the mental disability or developmental disability of the defendant was not known or apparent before the commencement of the proceeding.
(c) By the affidavit of any chief officer of an institution having custody of a defendant awaiting execution.
(3) Notwithstanding any provision of this article to the contrary, the question of whether a convicted person is mentally incompetent to be executed shall be raised and determined as provided in part 14 of article 1.3 of title 18, C.R.S.
HISTORY: Source: L. 2008: Entire article added, p. 1839, § 2, effective July 1.
(1) While a defendant is incompetent to proceed, the defendant shall not be tried or sentenced, nor shall the court consider or decide pretrial matters that are not susceptible of fair determination without the personal participation of the defendant. However, a determination that a defendant is incompetent to proceed shall not preclude the furtherance of the proceedings by the court to consider and decide matters, including a preliminary hearing and motions, that are susceptible of fair determination prior to trial and without the personal participation of the defendant. Those proceedings may be later reopened if, in the discretion of the court, substantial new evidence is discovered after and as a result of the restoration to competency of the defendant.
(2) The question of a defendant's competency to proceed shall be raised in the following manner:
(a) If the judge has reason to believe that the defendant is incompetent to proceed, it is the judge's duty to suspend the proceeding and determine the competency or incompetency of the defendant pursuant to section 16-8.5-103.
(b) If either the defense or the prosecution has reason to believe that the defendant is incompetent to proceed, either party may file a motion in advance of the commencement of the particular proceeding. A motion to determine competency shall be in writing and contain a certificate of counsel stating that the motion is based on a good faith doubt that the defendant is competent to proceed. The motion shall set forth the specific facts that have formed the basis for the motion. The motion shall be sealed by the court. If the motion is made by the prosecution, the prosecution shall provide to the defense a copy of the motion. If the motion is made by the defense, the defense shall provide to the prosecution notice of the filing of the motion at the time of filing, and if the defense requests a hearing, the defense shall provide the motion to the prosecution at the time the hearing is requested. The motion may be filed after the commencement of the proceeding if, for good cause shown, the mental disability or developmental disability of the defendant was not known or apparent before the commencement of the proceeding.
(c) By the affidavit of any chief officer of an institution having custody of a defendant awaiting execution.
(3) Notwithstanding any provision of this article to the contrary, the question of whether a convicted person is mentally incompetent to be executed shall be raised and determined as provided in part 14 of article 1.3 of title 18, C.R.S.
HISTORY: Source: L. 2008: Entire article added, p. 1839, § 2, effective July 1.
CRS 16-8.5-103 Determination of competency to proceed
(1) Whenever the question of a defendant's competency to proceed is raised, by either party or on the court's own motion, the court may make a preliminary finding of competency or incompetency, which shall be a final determination unless a party to the case objects within fourteen days after the court's preliminary finding.
(2) If either party objects to the court's preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department and that the department prepare a court-ordered report.
(3) Within fourteen days after receipt of the court-ordered report, either party may request a hearing or a second evaluation.
(4) If a party requests a second evaluation, any pending requests for a hearing shall be continued until the receipt of the second evaluation report. The report of the expert conducting the second evaluation shall be completed and filed with the court within sixty-three days after the court order allowing the second evaluation, unless the time period is extended by the court for good cause. If the second evaluation is requested by the court, it shall be paid for by the court.
(5) If neither party requests a hearing or a second evaluation within the applicable time frame, the court shall enter a final determination, based on the information then available to the court, whether the defendant is or is not competent to proceed.
(6) If a party makes a timely request for a hearing, the hearing shall be held within thirty-five days after the request for a hearing or, if applicable, within thirty-five days after the filing of the second evaluation report, unless the time is extended by the court after a finding of good cause.
(7) At any hearing held pursuant to this section, the party asserting the incompetency of the defendant shall have the burden of submitting evidence and the burden of proof by a preponderance of the evidence.
(8) If the question of the defendant's incompetency to proceed is raised after a jury is impaneled to try the issues raised by a plea of not guilty and the court determines that the defendant is incompetent to proceed or orders the defendant committed for a court-ordered competency evaluation, the court may declare a mistrial. Declaration of a mistrial under these circumstances does not constitute jeopardy, nor does it prohibit the trial, sentencing, or execution of the defendant for the same offense after he or she has been found restored to competency.
(1) Whenever the question of a defendant's competency to proceed is raised, by either party or on the court's own motion, the court may make a preliminary finding of competency or incompetency, which shall be a final determination unless a party to the case objects within fourteen days after the court's preliminary finding.
(2) If either party objects to the court's preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department and that the department prepare a court-ordered report.
(3) Within fourteen days after receipt of the court-ordered report, either party may request a hearing or a second evaluation.
(4) If a party requests a second evaluation, any pending requests for a hearing shall be continued until the receipt of the second evaluation report. The report of the expert conducting the second evaluation shall be completed and filed with the court within sixty-three days after the court order allowing the second evaluation, unless the time period is extended by the court for good cause. If the second evaluation is requested by the court, it shall be paid for by the court.
(5) If neither party requests a hearing or a second evaluation within the applicable time frame, the court shall enter a final determination, based on the information then available to the court, whether the defendant is or is not competent to proceed.
(6) If a party makes a timely request for a hearing, the hearing shall be held within thirty-five days after the request for a hearing or, if applicable, within thirty-five days after the filing of the second evaluation report, unless the time is extended by the court after a finding of good cause.
(7) At any hearing held pursuant to this section, the party asserting the incompetency of the defendant shall have the burden of submitting evidence and the burden of proof by a preponderance of the evidence.
(8) If the question of the defendant's incompetency to proceed is raised after a jury is impaneled to try the issues raised by a plea of not guilty and the court determines that the defendant is incompetent to proceed or orders the defendant committed for a court-ordered competency evaluation, the court may declare a mistrial. Declaration of a mistrial under these circumstances does not constitute jeopardy, nor does it prohibit the trial, sentencing, or execution of the defendant for the same offense after he or she has been found restored to competency.