(1) (a) If, after a sentence of death is imposed, the executive director of the department of corrections, the convicted person's attorney, or an attorney for the state has a good faith reason to believe that the convicted person may be mentally incompetent to be executed, the executive director, the convicted person's attorney, or the state attorney may file a motion raising the issue of whether the convicted person is mentally incompetent to be executed. The motion shall be filed in the district court in the judicial district in which the convicted person was sentenced and shall be directed to the judge who presided over the convicted person's sentencing hearing. If that judge is unavailable, the chief judge of the same judicial district shall decide the motion. The motion shall be filed in both the district court clerk's office and the office of the judge who will hear the motion. On the same day the motion and accompanying materials are filed with the court, the motion and all accompanying materials shall be served upon the office of the prosecuting attorney who tried the case and the attorney general's office.
(b) If the judge who presided at the sentencing hearing has a good faith reason to believe that the convicted person may be mentally incompetent to be executed, the judge shall so advise the convicted person's attorney or shall appoint an attorney to investigate the issue and file any motions the attorney deems appropriate under this part 14.
(2) (a) A motion filed pursuant to subsection (1) of this section shall set forth the facts relating to the convicted person's conviction and sentence and the facts giving rise to the belief that the convicted person may be mentally incompetent to be executed and shall request the district court to order that the convicted person be examined for mental incompetency to be executed. The motion shall be accompanied by the names and addresses of any mental health experts who have examined the convicted person with respect to the issue of whether the convicted person is mentally incompetent to be executed and the results of those examinations, as well as any records of any other mental health examinations, treatment, or reports that are not privileged and are available to the moving party or in the moving party's possession. If the moving party has any question regarding whether any such report is privileged, the report shall be submitted to the court ex parte and the court shall make a determination as to release of the report. If the moving party is the convicted person's attorney, the convicted person shall be deemed to have waived any claim of confidentiality or privilege as to communications made by the convicted person to any physician, psychiatrist, or psychologist in the course of examination or treatment for any mental health condition for which the convicted person has received treatment, and the moving party shall include any records of any other mental health examinations, treatment, or reports.
(b) On receipt of a motion raising the issue of whether a convicted person is mentally incompetent to be executed, the clerk of the district court shall transmit copies of the motion to the supreme court. The clerk of the district court shall transmit copies of all subsequent filings to the supreme court as they are received.
Source: L. 2002: Entire article added with relocations, p. 1459, § 2, effective October 1.
Editor's note: This section is similar to former § 16-8-303 as it existed prior to 2002.