07 LC
29 2850S (SCS)
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 SENATE
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 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.
(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
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.
(b)(c)
Within 90 days after the Department of Human Resources has received actual
custody of a
person
defendant 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
defendant
shall be evaluated and a diagnosis made as to whether the
person
defendant
is presently mentally incompetent to stand trial and, if so, whether there is a
substantial probability that the
person
defendant
will attain mental competency to stand trial in the foreseeable future. If the
person
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
person
defendant
shall be returned to the court as provided for in subsection
(e)(f)
of this Code section.
(c)(d)
If the
person
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
that
finding
regarding
competency,
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 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.
(d)(e)
If the
person
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
person
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
person´s
defendant´s
condition warrants, the
person
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.
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)
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
person
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
person
defendant
to the department unless
the court
has dismissed the charges which led to the
commitment
have been
dismissed, in which case the
person
defendant
shall be discharged. In the event a law enforcement officer does not appear and
take custody of the
person
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
person
defendant
to one of the committing court´s detention facilities; and the cost of
returning the
person
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
person
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
person
defendant
so committed. Such alternative detention shall continue only until the date of
the
person´s
defendant´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 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.
(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
defendant
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
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
person´s
defendant´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.