08 LC 29
3131
House
Bill 1136
By:
Representatives Ralston of the
7th,
Willard of the
49th,
Lunsford of the
110th,
Cooper of the
41st,
Mumford of the
95th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Part 2 of Article 6 of Chapter 7 of Title 17 of the Official Code of
Georgia Annotated, relating to insanity and mental incompetency, so as to
change, reorganize, and clarify certain provisions relating to proceedings in
cases involving a plea of mental incompetency to stand trial; to define terms;
under certain circumstances, to provide for the prosecuting attorney to petition
the probate court for the defendant´s involuntary civil commitment or
habilitative services; to provide that defendants who are charged with a
nonviolent offense and found mentally incompetent to stand trial shall have the
charges dismissed by operation of law under certain circumstances; to remove the
requirement that a defendant charged with a misdemeanor offense be committed to
the Department of Human Resources for a period of one year prior to charges
being dismissed by operation of law; to provide for related matters; to provide
for an effective date and applicability; to repeal conflicting laws; and for
other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Part
2 of Article 6 of Chapter 7 of Title 17 of the Official Code of Georgia
Annotated, relating to insanity and mental incompetency, is amended by revising
in its entirety Code Section 17-7-130, relating to proceedings upon plea of
mental incompetency to stand trial, as follows:
"17-7-130.
(a)
As used in this Code section, the term:
(1)
'Committing court' means the court which has jurisdiction over the criminal
charges against the defendant.
(2)
'Department' means the Department of Human Resources.
(3)
'Inpatient' shall have the same meaning as in paragraph (9.1) of Code Section
37-3-1.
(4)
'Nonviolent offense' means any offense other than:
(A)(i)
Murder;
(ii)
Rape;
(iii)
Aggravated sodomy;
(iv)
Armed robbery;
(v)
Aggravated assault;
(vi)
Hijacking of a motor vehicle or an aircraft;
(vii)
Aggravated battery;
(viii)
Aggravated sexual battery;
(ix)
Aggravated child molestation;
(x)
Aggravated stalking;
(xi)
Arson in the first degree and in the second degree;
(xii)
Stalking;
(xiii)
Fleeing and attempting to elude a police officer;
(xiv)
Any sexual offense against a minor; or
(xv)
Any offense which involves the use of a deadly weapon or destructive device;
and
(B)
Those felony offenses deemed by the committing court to involve an allegation of
actual or potential physical harm to another person.
(5)
'Outpatient' shall have the same meaning as in paragraph (12.1) of Code Section
37-3-1, provided that the committing court determines that the defendant meets
the criteria for release on bail or other pretrial release pursuant to Code
Section 17-6-1.
(b)
Whenever a plea is filed that a defendant in a criminal case is mentally
incompetent to stand trial, it shall be the duty of the committing court to
cause the issue of the defendant´s mental competency to stand trial to be
tried first by a special jury.
(c)
If the special jury finds the defendant mentally incompetent to stand trial, the
committing court shall retain jurisdiction over the defendant and shall transfer
the defendant to the department; provided, however, that if the defendant is
charged with a misdemeanor offense not included in subparagraph (a)(4)(A) of
this Code section or a nonviolent offense, the committing court may, in its
discretion, retain jurisdiction over the defendant and may allow the department
to perform an evaluation on an outpatient basis. If the committing court allows
an outpatient evaluation and the defendant is in custody, such court may release
the defendant in accordance with the provisions of Code Section 17-6-1, et seq.
Within 90 days after the department has received actual custody of a defendant
or, in the case of an outpatient, a court order requiring an evaluation of a
defendant, the department shall report its opinion to the committing court after
evaluating and diagnosing the defendant to determine:
(1)
Whether the defendant is presently mentally competent to stand
trial;
(2)
If the defendant is not presently mentally competent to stand trial, whether
there is a substantial probability that the defendant will attain mental
competency to stand trial in the foreseeable future; and
(3)
If the defendant is not presently mentally competent to stand trial and there is
no substantial probability that the defendant will attain mental competency in
the foreseeable future, whether the defendant currently meets criteria for
commitment as an inpatient or as an outpatient pursuant to Chapter 3 or 4 of
Title 37, as applicable.
(d)
At any time during proceedings held pursuant to this Code section, the
committing court may order an independent evaluation of the defendant by a court
appointed licensed clinical psychologist or psychiatrist who shall report to
such court in writing on any matter the court determines, including the issues
set forth in paragraphs (1) through (3) of subsection (c) of this Code
section.
(e)
If at any time during the defendant´s evaluation by the department it
determines that the defendant is mentally competent to stand trial, the
department shall immediately report such finding and the reasons therefor to the
committing court. If the defendant is an inpatient, the department shall return
the defendant to the committing court as provided for in subsection (i) of this
Code section. If the defendant is an outpatient, the defendant may remain in
the community under conditions of bond or other conditions set by the committing
court, if any, until the date of hearing or trial.
(f)
If within the initial evaluation period provided in subsection (c) of this Code
section the department determines that an inpatient defendant is mentally
incompetent to stand trial and:
(1)
There is not a substantial probability that the defendant will attain competency
in the foreseeable future, the department shall return the physical custody of
the defendant to the committing court as provided in subsection (i) of this Code
section and follow the procedures set forth in paragraph (2) of subsection (h)
of this Code section; or
(2)
There is a substantial probability that the defendant will attain competency in
the foreseeable future, the department shall retain custody over the defendant
for the purpose of continued treatment for an additional period not to exceed
nine months; provided, however, that if the defendant is charged with a
misdemeanor offense not included in subparagraph (a)(4)(A) of this Code section
or a nonviolent offense, the committing court shall retain jurisdiction over the
defendant but may, at any time, allow the department to provide treatment on an
outpatient basis. The department shall monitor the defendant´s outpatient
treatment for an additional period not to exceed nine months.
(g)
If within the initial evaluation period provided in subsection (c) of this Code
section the department determines that an outpatient defendant is mentally
incompetent to stand trial and:
(1)
There is not a substantial probability that the defendant will attain competency
in the foreseeable future, the committing court shall follow the procedures set
forth in paragraph (2) of subsection (h) of this Code section;
or
(2)
There is a substantial probability that the defendant will attain competency in
the foreseeable future, the committing court shall retain jurisdiction over the
defendant but may allow the department to provide treatment on an outpatient
basis. The department shall monitor the defendant´s outpatient treatment
for an additional period not to exceed nine months.
(h)
At the end of the nine-month period set forth in paragraph (2) of either
subsection (f) or (g) of this Code section, as applicable, or at any time prior
if the defendant´s condition warrants, the committing court shall have a
hearing. If the defendant is an inpatient, the department shall return the
defendant to the committing court as provided for in subsection (i) of this Code
section. If the defendant is found to be:
(1)
Competent to stand trial, the defendant may be prosecuted for the charges; and
if the defendant is an inpatient, the department shall return the defendant to
the committing court as provided for in subsection (i) of this Code section;
or
(2)
Mentally incompetent to stand trial, the committing court shall proceed as
follows:
(A)
If the defendant is charged with a misdemeanor offense or a nonviolent offense,
the charge against the defendant shall be dismissed by operation of law. If the
defendant appears to require further treatment, the committing court shall order
the prosecuting attorney to file a petition in the probate court for involuntary
civil commitment or habilitation services; and the committing court shall retain
jurisdiction of the defendant until the time of the hearing in the probate
court; or
(B)
If the defendant is charged with an offense listed in subparagraph (a)(4)(A) of
this Code section, or an offense as identified in subparagraph (a)(4)(B) of this
Code section, the committing court shall retain jurisdiction of the defendant
and conduct a hearing at which it shall hear evidence and consider all
psychiatric and psychological reports submitted to such court and determine
whether the prosecuting attorney has proved by clear and convincing evidence
that the defendant meets the criteria for involuntary civil commitment as an
inpatient or as an outpatient pursuant to Chapter 3 or 4 of Title 37, as
applicable. The burden of proof in such hearings shall be upon the
state.
(i)
If such defendant does not meet the criteria for inpatient or outpatient civil
commitment, such defendant shall be released in accordance with the provisions
of Code Section 17-6-1, et seq.
(ii)
If such defendant is found to meet the criteria for involuntary civil commitment
as an inpatient or outpatient, the committing court may issue an order
committing the defendant. A defendant who is involuntarily civilly committed
may be released from such inpatient or outpatient commitment only by order of
the committing court in accordance with the procedures specified in paragraphs
(1) through (3) of subsection (f) of Code Section 17-7-131, except that the
burden of proof in such release hearing shall be on the state. If the committed
defendant cannot afford a physician or licensed clinical psychologist of the
defendant´s choice, the defendant may petition the committing court and the
court may order such cost to be paid by the county. The department shall report
annually to the committing court on whether the civilly committed defendant
continues to meet criteria for involuntary commitment as an inpatient or an
outpatient pursuant to Chapter 3 or 4 of Title 37, as applicable. The
committing court shall review the case and enter an appropriate order which
shall:
(I)
Renew the inpatient or outpatient civil commitment;
(II)
Change the commitment either from inpatient to outpatient or from outpatient to
inpatient;
(III)
Dismiss the charges and transfer the jurisdiction of the case to the probate
court for further proceedings pursuant to Title 37, if appropriate;
or
(IV)
Dismiss the charges and release the defendant.
(i)
When an inpatient defendant is to be returned to the custody of law enforcement,
such defendant shall be discharged into the custody of a law enforcement officer
of the jurisdiction of the committing court unless the charges which led to the
commitment have been dismissed, in which case the defendant shall be discharged.
In the event a law enforcement officer does not appear and take custody of the
defendant within 20 days after notice to the appropriate law enforcement
official in the jurisdiction of the committing court, the presiding judge of the
committing court, and the prosecuting attorney for the court, the department
shall return the defendant to one of the committing court´s detention
facilities. The cost of returning such defendant shall be paid by the county in
which the committing court is located. All notifications shall be sent by
certified mail or statutory overnight delivery, return receipt requested, to the
law enforcement official and presiding judge of the jurisdiction of the
committing court. With the concurrence of the committing court and upon the
recommendation of the department, a defendant may be held by the department
instead of at the court´s detention facilities whenever, in the
department´s opinion, such detention in the committing court´s
detention facilities would be detrimental to the well-being of the defendant.
Such alternative detention shall continue only until the date of the
defendant´s trial or hearing.
(j)
Any defendant found by the department to be mentally competent to stand trial
and returned to the committing court as provided in subsection (i) of this Code
section shall again be entitled to file a special plea as provided for in this
Code section.
(k)
If a defendant is found to be mentally incompetent to stand trial, whether or
not committed pursuant to this Code section, the state may file at any time a
motion for rehearing on the issue of the defendant´s mental competency.
The committing court shall grant said motion upon a showing by the state that
there are reasonable grounds to believe that the defendant´s mental
condition has changed. If this motion is granted, the case shall proceed as
provided in subsection (b) of this Code section."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval and shall apply to cases pending on the
effective date of this Act.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.