07 LC
33 1824
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
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 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 felony offense' means any felony 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; 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.
(5)
'Violent felony' means
(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; and
(B)
Those felony offenses deemed by the committing court to involve an allegation of
actual or potential physical harm to another person.
(a)(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
or a nonviolent felony offense, the court may, in its discretion, retain
jurisdiction over the defendant, but require or 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 shall release
the defendant on a recognizance
bond.
(b)(c)
Within 90 days after the Department of Human Resources has received actual
custody of a person
or, in the
case of an outpatient, a court order requiring evaluation of a defendant
pursuant to subsection
(a)
(b)
of this Code section, the person shall be evaluated and a diagnosis made as to
whether the person is presently mentally incompetent to stand trial and, if so,
whether there is a substantial probability that the person will attain mental
competency to stand trial in the foreseeable future. If the person 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 person
shall be returned to the court as provided for in subsection
(e)(f)
of this Code section.
(c)(d)
If the person 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 person to the court and
shall report
to the
committing court that
finding,
and
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
to the
committing court. If the person meets the criteria for civil commitment, he
shall thereupon be civilly committed to a state institution pursuant to Chapter
3 or 4 of Title 37, whichever is applicable. If the person does not meet the
criteria for civil commitment or if the person after having been committed
becomes mentally competent to stand trial, the committing court shall be
notified and the person shall be returned to the court as provided for in
subsection (e) of this Code section.
The committing
court shall retain custody of the person and may order an independent evaluation
of the person 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)
Allow the dismissal of the criminal charges and refer the case to the probate
court for commitment proceedings pursuant to Chapter 3 or 4 of Title 37, if
appropriate; or
(2)
Retain jurisdiction of the person 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 person 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 person does not meet the criteria for inpatient or outpatient civil
commitment, the person shall be released subject to provisions of bond and other
conditions set by the committing court.
(B)
If the person is found to meet the criteria for involuntary civil commitment as
an inpatient or outpatient, the judge may issue an order committing the person
for a period not to exceed one year.
(i)
If the person so committed is charged with a misdemeanor offense, the committing
court may civilly commit the person. If, following the commitment period, the
person continues to meet commitment criteria as an inpatient or an outpatient,
the committing court shall dismiss the charges and transfer jurisdiction of the
case to the probate court for further proceedings pursuant to Title
37.
(ii)(I)
A person who is so committed and is charged with a violent 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 person´s
choice, the person may petition the court and the court may order such cost to
be paid by the county.
(II)
The Department of Human Resources shall report annually to the committing court
on whether the civilly committed person 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 from inpatient to outpatient, or to dismiss the charges
and transfer jurisdiction of the case to the probate court for further
proceedings pursuant to Title 37, if appropriate.
(d)(e)
If the person 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 person for the purpose of continued treatment for
an additional period not to exceed nine
months.
If the
defendant is charged with a misdemeanor offense or a nonviolent felony offense,
the court may, in its discretion, retain jurisdiction over the defendant, but
require or allow continued treatment to be done on an outpatient basis by the
Department of Human Resources. The department shall monitor the person´s
outpatient treatment for an additional period not to exceed nine months. If the
defendant is charged with a violent felony the department shall retain the
individual for the purpose of continued 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 person´s condition
warrants, the person 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.
If the
person meets the criteria for civil commitment, he shall thereupon be civilly
committed to a state institution pursuant to Chapter 3 or 4 of Title 37,
whichever is applicable. If the person does not meet the criteria for civil
commitment or if the person after having been committed becomes mentally
competent to stand trial, the committing court shall be notified and the person
shall be returned to the court as provided for in subsection (e) of this Code
section.
(e)(f)(1)
A person 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 person to the department unless the court has dismissed the
charges which led to the commitment, in which case the person shall be
discharged.
If the person
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. In
the event a law enforcement officer does not appear and take custody of the
person 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 person to one of the committing court´s detention
facilities; and the cost of returning the person 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 person 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 person so
committed. Such alternative detention shall continue only until the date of the
person´s trial.
(2)
The
physical custody of a person who is found by the Department of Human Resources
to be mentally incompetent to stand trial and for whom there is no substantial
probability that he or she will attain competency in the foreseeable future
shall be returned to the committing court. The committing court shall retain
custody of the person and may order an independent evaluation of the person 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
person. Then the court shall conduct a hearing at which the court 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 person meets the criteria for involuntary civil commitment
pursuant to Chapter 3 or Chapter 4 of Title 37, whichever is applicable. If the
person is found to meet the criteria for involuntary civil commitment, the judge
may issue an order committing the person to a state institution. If the person
does not meet the criteria for involuntary civil commitment, the person shall be
released subject to provisions of bond and other conditions set by the
committing court. A person committed under the provisions of this paragraph may
only be discharged from that 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 person´s choice, the
person may petition the court and the court may order such cost be paid by the
county. This paragraph applies to those persons:
(A)
Accused of committing the following crimes:
(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;
(B)
Who are an obvious threat to society as determined by the Department of Human
Resources or the assigned judge; or
(C)
Who have been convicted of or committed for three or more
felonies.
A person 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.
(f)(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
(e)(f)
of this Code section shall again be entitled to file a special plea as provided
for in this Code section.
(g)(h)
If a person is found to be mentally incompetent to stand trial, whether or not
committed
to a state
institution under
pursuant
to this Code section, the state may file
at any time a motion for rehearing on the issue of the person´s mental
competency. The court shall grant said motion upon a showing by the state that
there are reasonable grounds to believe that the person´s mental condition
has changed. If this motion is granted, the case shall proceed as provided in
subsection
(a)(b)
of this Code section."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.