(1) (a) 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 to proceed, which is a final determination unless a party to the case objects within seven days after the court's preliminary finding.
(b) On or before the date when a court orders that a defendant be evaluated for competency, a court liaison for the district hired pursuant to part 2 of article 11.9 of this title 16 may be assigned to the defendant.
If either party objects to the court's preliminary finding, or if the court determinesthat 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.
Within seven days after receipt of the court-ordered report, either party may request ahearing or a second evaluation.
If a party requests a second evaluation, any pending requests for a hearing must becontinued until the receipt of the second evaluation report. The report of the expert conducting the second evaluation must be completed and filed with the court within thirty-five 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 must be paid for by the court.
If neither party requests a hearing or a second evaluation within the applicable timeframe, 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.
If a party makes a timely request for a hearing, the hearing shall be held withinthirty-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.
At any hearing held pursuant to this section, the party asserting the incompetency ofthe defendant shall have the burden of submitting evidence and the burden of proof by a preponderance of the evidence.
If the question of the defendant's incompetency to proceed is raised after a jury isimpaneled to try the issues raised by a plea of not guilty and the court determines that the defendant is incompetent to proceed or orders 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 or sentencing of the defendant for the same offense after he or she has been found restored to competency.
In all proceedings under this article 8.5, when competency has been raised by theparole board pursuant to section 16-8.5-102 (2)(d), the court shall pay for any evaluation to determine competency pursuant to this section, and the evaluation must be conducted at the place where the defendant is in custody.
Source: L. 2008: Entire article added, p. 1840, § 2, effective July 1. L. 2012: (1), (3),
(4), and (6) amended, (SB 12-175), ch. 208, p. 852, § 80, effective July 1. L. 2018: (9) added, (HB 18-1109), ch. 139, p. 914, § 5, effective April 23. L. 2019: (1), (3), (4), and (8) amended, (SB 19-223), ch. 227, p. 2276, § 3, effective July 1. L. 2020: (8) amended, (SB 20-100), ch. 61, p. 207, § 6, effective March 23.
Editor's note: This section is similar to former § 16-8-111 as it existed prior to 2008.
Cross references: For the constitutional provision on double jeopardy, see § 18 of article II of the state constitution.