07
SB190/AP
Senate
Bill 190
By:
Senators Harp of the 29th, Meyer von Bremen of the 12th, Moody of the 56th,
Goggans of the 7th, Thomas of the 54th and
others
AS PASSED
AS PASSED
AN
ACT
To
amend Part 2 of Article 6 of Chapter 7 of Title 17 of the Official Code of
Georgia Annotated, relating to issues of insanity and mental incompetency in
pretrial proceedings, so as to provide for definitions; to provide that the
committing court may have discretion to allow evaluation in the community for
certain defendants; to provide that the committing court can order an evaluation
of the defendant; to provide for the committing court to conduct a civil
commitment hearing on the defendant; to provide for related matters; 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 issues of insanity and mental incompetency in pretrial
proceedings, is amended by revising Code Section 17-7-130, relating to
proceedings upon a 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)
'Inpatient' shall have the same meaning as in paragraph (9.1) of Code Section
37-3-1.
(3)
'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; or
(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.
(4)
'Outpatient' shall have the same meaning as in paragraph (12.1) of Code Section
37-3-1, provided that the court determines that the defendant meets the criteria
for release on bail or other pre-trial 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 court to cause the issue
of the defendant´s mental competency to stand trial to be tried first by a
special jury. If the special jury finds the defendant mentally incompetent to
stand trial, the court shall retain jurisdiction over the defendant but shall
transfer the defendant to the Department of Human Resources; provided, however,
that if the defendant is charged with a misdemeanor offense other than as
included in subparagraph (A) of paragraph (3) of subsection (a) of this Code
section or a nonviolent offense, the court may, in its discretion, retain
jurisdiction over the defendant, and may allow evaluation to be done on an
outpatient basis by the Department of Human Resources. If the court allows
outpatient evaluation and the defendant is in custody, the court may release the
defendant in accordance with the provisions of Code Section 17-6-1,
et.seq.
(c)
Within 90 days after the Department of Human Resources has received actual
custody of a defendant or, in the case of an outpatient, a court order requiring
evaluation of a defendant pursuant to subsection (b) of this Code section, the
defendant shall be evaluated and a diagnosis made as to whether the defendant is
presently mentally incompetent to stand trial and, if so, whether there is a
substantial probability that the defendant will attain mental competency to
stand trial in the foreseeable future. If the defendant is found to be mentally
competent to stand trial, the department shall immediately report that finding
and the reasons therefor to the committing court; and the defendant shall be
returned to the court as provided for in subsection (f) of this Code
section.
(d)
If the defendant is found to be mentally incompetent to stand trial by the
Department of Human Resources and there is not a substantial probability that
the person will attain competency in the foreseeable future, the department
shall return the physical custody of the defendant to a law enforcement officer
of the jurisdiction of the court which committed the defendant unless in the
opinion of the department´s attending physician, and with concurrence of
the court, such detention by law enforcement would be detrimental to the
well-being of the defendant, in which case the defendant may be held by the
department until the date of the defendant´s hearing. The department shall
report to the committing court the finding regarding competency, the reasons
therefor, and its opinion as to whether the defendant currently meets criteria
for commitment as an inpatient or as an outpatient pursuant to Chapters 3 or 4
of Title 37. The law enforcement officer of the jurisdiction of the court which
committed the defendant shall retain custody of the defendant and the committing
court may order an independent evaluation of the defendant by a court appointed
licensed clinical psychologist or psychiatrist, who shall report to the court in
writing as to the current mental and emotional condition of the defendant.
Based on consideration of all evidence and all reports, the committing court
may:
(1)
Refer the case to the probate court for commitment proceedings pursuant to
Chapter 3 or 4 of Title 37, if appropriate and if the charges are dismissed for
any reason; or
(2)
Retain jurisdiction of the defendant and conduct a hearing at which it shall
hear evidence and consider all psychiatric and psychological reports submitted
to the court and determine whether the state 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,
whichever is applicable. The burden of proof in such hearings shall be upon the
state.
(A)
If the defendant does not meet the criteria for inpatient or outpatient civil
commitment, the defendant shall be released in accordance with the provisions of
Code Section 17-6-1 et. seq.
(B)
If the defendant is found to meet the criteria for involuntary civil commitment
as an inpatient or outpatient, the judge may issue an order committing the
defendant.
(i)
If the defendant so committed is charged with a misdemeanor offense, the
committing court may civilly commit the defendant for a period not to exceed one
year. Following the commitment period, the charges against the defendant shall
be dismissed by operation of law.
(ii)
A defendant who is so committed and is charged with a felony may only be
released from that inpatient or outpatient commitment 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 and if the committed person cannot
afford a physician or licensed clinical psychologist of the defendant´s
choice, the person may petition the court and the court may order such cost to
be paid by the county.
The
Department of Human Resources 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. The committing court shall review the case and enter an
appropriate order, either to renew the inpatient or outpatient civil commitment,
to change the commitment either from inpatient to outpatient or from outpatient
to inpatient, or in the event charges are dismissed, transfer the jurisdiction
of the case to the probate court for further proceedings pursuant to Title 37,
if appropriate.
(e)
If the defendant is found to be mentally incompetent to stand trial but there
is a substantial probability that the person will attain competency in the
foreseeable future, by the end of the 90 day period, or at any prior time, the
department shall report that finding and the reasons therefor to the committing
court and 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 or a nonviolent
offense, the court shall retain jurisdiction over the defendant, but may, in its
discretion, allow continued treatment to be done on an outpatient basis by the
Department of Human Resources. The department shall monitor the
defendant´s outpatient treatment for an additional period not to exceed
nine months. If, by the end of the nine-month period or at any prior time if
the defendant´s condition warrants, the defendant is still found not to be
competent to stand trial, irrespective of the probability of recovery in the
foreseeable future, the department shall report that finding and the reasons
therefor to the committing court. The committing court shall then follow the
procedures in subsection (d) of this Code section for further commitment or
release.
(f)(1)
If the defendant found to be mentally incompetent to stand trial is at any time
found by the Department of Human Resources to be mentally competent to stand
trial, the committing court shall be notified. A defendant who is an inpatient
and is found by the Department of Human Resources to be mentally competent to
stand trial shall be discharged into the custody of a law enforcement officer of
the jurisdiction of the court which committed the defendant to the department
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 itself return the defendant to one of the
committing court´s detention facilities; and the cost of returning the
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. With the concurrence of the appropriate
court and upon the recommendation of the department´s attending physician,
any defendant discharged as competent to stand trial may be held by the
department instead of at the court´s detention facilities whenever, in the
attending physician´s opinion, such detention in the court´s
facilities would be detrimental to the well-being of the defendant so committed.
Such alternative detention shall continue only until the date of the
defendant´s trial.
(2)A
defendant who is an outpatient and is found by the Department of Human Resources
to be mentally competent to stand trial may remain in the community under
conditions of bond or other conditions ordered by the committing court, if any,
until the date of the person´s trial.
(g)
Any person found by the Department of Human Resources to be mentally competent
to stand trial returned to the court as provided in subsection (f) of this Code
section shall again be entitled to file a special plea as provided for in this
Code section.
(h)
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 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.
All
laws and parts of laws in conflict with this Act are repealed.