(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 must be raised in only one of the following manners:
If the judge has reason to believe that the defendant is incompetent to proceed, it isthe judge's duty to suspend the proceeding and determine the competency or incompetency of the defendant pursuant to section 16-8.5-103;
If either the defense or the prosecution has reason to believe that the defendant isincompetent 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.
Repealed.
By the state board of parole when a board member has a substantial and good-faithreason to believe that the offender is incompetent to proceed, as defined in section 16-8.5-101 (12), at a parole hearing conducted pursuant to section 17-22.5-403.5.
(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.
Source: L. 2008: Entire article added, p. 1839, § 2, effective July 1. L. 2018: (2)(c) amended and (2)(d) added, (HB 18-1109), ch. 139, p. 914, § 4, effective April 23. L. 2019: IP(2) and (2)(d) amended and (2)(c) repealed, (SB 19-223), ch. 227, p. 2275, § 2, effective July 1.
Editor's note: This section is similar to former § 16-8-110 as it existed prior to 2008.