Previous  Next

16-8.5-103. Determination of competency to proceed.

Statute text

(1) (a) Whenever the question of a defendant's competency to proceed is raised, by either party or on the court's own motion, the court may make a preliminary finding of competency or incompetency to proceed, which is a final determination unless a party to the case objects within seven days after the court's preliminary finding.

(b) On or before the date when a court orders that a defendant be evaluated for competency, a court liaison for the district hired or contracted pursuant to article 95 of title 13 may be assigned to the defendant.

(2) If either party objects to the court's preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department and that the department prepare a court-ordered report.

(3) Within seven days after receipt of the court-ordered report, either party may request a hearing or a second evaluation.

(4) If a party requests a second evaluation, any pending requests for a hearing must be continued until the receipt of the second evaluation report. The report of the expert conducting the second evaluation must be completed and filed with the court within thirty-five days after the court order allowing the second evaluation, unless the time period is extended by the court for good cause. If a second evaluation is completed and restoration is ultimately ordered, then the court shall make the second evaluation available to the department. If the second evaluation is requested by the court, it must be paid for by the court.

(5) If neither party requests a hearing or a second evaluation within the applicable time frame, the court shall enter a final determination, based on the information then available to the court, whether the defendant is or is not competent to proceed.

(6) If a party makes a timely request for a hearing, the hearing shall be held within thirty-five days after the request for a hearing or, if applicable, within thirty-five days after the filing of the second evaluation report, unless the time is extended by the court after a finding of good cause.

(7) At any hearing held pursuant to this section, the party asserting the incompetency of the defendant shall have the burden of submitting evidence and the burden of proof by a preponderance of the evidence.

(8) If the question of the defendant's incompetency to proceed is raised after a jury is impaneled to try the issues raised by a plea of not guilty and the court determines that the defendant is incompetent to proceed or orders a court-ordered competency evaluation, the court may declare a mistrial. Declaration of a mistrial under these circumstances does not constitute jeopardy, nor does it prohibit the trial or sentencing of the defendant for the same offense after he or she has been found restored to competency.

(9) In all proceedings under this article 8.5, when competency has been raised by the parole board pursuant to section 16-8.5-102 (2)(d), the court shall pay for any evaluation to determine competency pursuant to this section, and the evaluation must be conducted at the place where the defendant is in custody.


Source: L. 2008: Entire article added, p. 1840, 2, effective July 1. L. 2012: (1), (3), (4), and (6) amended, (SB 12-175), ch. 208, p. 852, 80, effective July 1. L. 2018: (9) added, (HB 18-1109), ch. 139, p. 914, 5, effective April 23. L. 2019: (1), (3), (4), and (8) amended, (SB 19-223), ch. 227, p. 2276, 3, effective July 1. L. 2020: (8) amended, (SB 20-100), ch. 61, p. 207, 6, effective March 23. L. 2022: (4) amended, (HB 22-1386), ch. 317, p. 2255, 1, effective July 1. L. 2023: (1)(b) amended, (SB 23-229), ch. 119, p. 442, 4, effective April 27.


Editor's note: This section is similar to former 16-8-111 as it existed prior to 2008.


Cross references: For the constitutional provision on double jeopardy, see 18 of article II of the state constitution.





Annotator's note. Since 16-8.5-103 is similar to repealed 16-8-111, relevant cases construing that provision have been included in the annotations to this section.

This section meets due process requirements of the fourteenth amendment. The section involves weighty governmental interest, and because of the significant consequences to due process that an error in making the determination of mental competency would have, the lower "reason to believe" standard is an appropriate threshold for commencing the determination of mental competency. Cappelli v. Demlow, 935 P.2d 57 (Colo. App. 1996).

No fourteenth amendment equal protection clause violation merely because of the lower "reason to believe" threshold for criminal commitment statute versus a probable cause standard of civil commitment statutes. Cappelli v. Demlow, 935 P.2d 57 (Colo. App. 1996).

This section does not implicate the fourth amendment. Cappelli v. Demlow, 935 P.2d 57 (Colo. App. 1996).

Where a defendant's mental disease or defect renders him incompetent to decide whether or not to exercise his right to testify in his own defense, he is incompetent to stand trial. People v. Mondragon, 217 P.3d 936 (Colo. App. 2009).

Purpose of this section is to ensure against a violation of due process that would arise if a defendant who is not mentally competent were required to stand trial or participate in other critical criminal procedures. Schwader v. District Court, 172 Colo. 474, 474 P.2d 607 (1970); Cappelli v. Demlow, 935 P.2d 57 (Colo. App. 1996).

Section 16-8.5-102 (2)(b) requires a trial court to consider defense counsel's motion raising competency without disclosing that motion to the prosecution. People v. Roina, 2019 CO 20, 437 P.3d 919.

The plain language of that section provides that the trial court may consider the defense's ex parte competency motion when the defense raises competency and seeks a preliminary finding as to competency. People v. Roina, 2019 CO 20, 437 P.3d 919.

Defense counsel's sealed motion raising defendant's competency was a request for the court to order an initial competency evaluation of the defendant. Section 16-8.5-102 (2)(b) requires trial courts to consider these motions even though they may be characterized as ex parte communications. The trial court erred in determining that it could review the defense's motion only if it provided a copy to the prosecution. People v. Roina, 2019 CO 20, 437 P.3d 919.

The general assembly made clear in this section that there is a distinction between the preliminary finding as to competency and the competency hearing. People v. Roina, 2019 CO 20, 437 P.3d 919.

Section 16-8.5-102 (2)(b) requires the defense to provide the prosecution a copy of a sealed motion raising competency only when defense counsel requests a competency hearing, not a preliminary finding as to competency. People v. Roina, 2019 CO 20, 437 P.3d 919.

Court needs not await a specific request from defense. People v. Thomas, 962 P.2d 263 (Colo. App. 1997).

Trial court acted properly in ordering competency evaluation based on a pretrial motion that raised doubts as to defendant's competency, then allowing testimony by evaluating doctor to rebut defendant's claim of lack of mental capacity. People v. Thomas, 962 P.2d 263 (Colo. App. 1997).

Showing necessary to "raise the issue" of a defendant's competency after trial has commenced. Where trial court had an opportunity to observe defendant during first day of trial and noted that defendant understood her competency was being addressed and, without prompting, stated she wanted to continue the trial, defense counsel's assertion of defendant's condition of methadone withdrawal did not create a reason to presume mental incompetency. People v. Morino, 743 P.2d 49 (Colo. App. 1987).

The trial court's statement that defendant's motion for a competency hearing was a "ploy" to delay the trial was adequately supported by what the judge learned in his judicial capacity during argument on pretrial motions concerning the defendant's competency, and such a statement does not constitute the kind of prejudice required for recusal. People v. Seigler, 832 P.2d 980 (Colo. App. 1991), cert denied, 846 P.2d 189 (Colo. 1993).

Court correctly ruled that the issue of competency had not been properly raised where defense counsel refused to give specific reasons to support his opinion that the defendant was incompetent and refused the court's offer of an in camera hearing on the issue, the court had ample opportunity to observe the defendant, and the defendant ably assisted in his case. People v. Seigler, 832 P.2d 980 (Colo. App. 1991), cert denied, 846 P.2d 189 (Colo. 1993).

Determination of issue of insanity after sentence does not require safeguards of a judicial proceeding, since it relates to the consequences of the offense and not to the guilt of a defendant. Leick v. People, 140 Colo. 564, 345 P.2d 1054 (1959).

Trial of incompetent violates due process. Subjecting an accused to trial when he or she is incompetent violates due process of law. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).

Trial of an incompetent defendant constitutes structural error and requires reversal. People v. Mondragon, 217 P.3d 936 (Colo. App. 2009).

Failure to hold hearing on claimed incompetence violates due process. Due process is violated when a trial court does not afford an accused an adequate hearing on his or her claimed incompetency to stand trial. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).

But, when a court can conduct a meaningful hearing retrospectively to evaluate the competency of a defendant, such competency hearings do not violate due process principles. In determining whether a meaningful hearing can be held, a court should consider: (1) the passage of time; (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations; (3) defendant's statements in the trial record; and (4) the availability of individuals and witnesses who interacted with the defendant before and during trial, including the trial judge, both counsel, and jail officials. People v. Corichi, 18 P.3d 807 (Colo. App. 2000).

Even where competence issue raised by court. That the issue of defendant's competency is raised by the trial court, and not by the defendant's counsel, or by his advisory counsel, does not result in a weakening of the imperative that he be afforded an adequate hearing on his competency. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).

Prohibition against prosecuting incompetent defendant is not restricted to trial and post-trial stages of the case. Jones v. District Court, 617 P.2d 803 (Colo. 1980).

Court to make inquiry where substantial issue as to competency. Where defense attorney's representation to the court raised a substantial issue as to the defendant's competency to stand trial, trial court's refusal to make any inquiry into that issue or to receive any evidence in that regard constituted an abuse of discretion. Jones v. District Court, 617 P.2d 803 (Colo. 1980).

Trial court should have made a preliminary competency finding. Defense counsel's motion met the requirements of 16-8.5-102 (2)(b) and should have triggered the procedures of this section. People v. Zimmer, 2021 COA 40, 491 P.3d 554.

Because defense counsel raised a "sufficient doubt" about defendant's competency and the trial court failed to make the required competency determination, the court's error was of constitutional dimension. People v. Zimmer, 2021 COA 40, 491 P.3d 554.

It relates to a reprieve. Postponement of execution because of incompetency bears a close affinity not to trial for a crime, but rather to reprieves of sentences in general. Leick v. People, 140 Colo. 564, 345 P.2d 1054 (1959).

The ultimate issue is the competency, or lack of it, of a particular individual as of a date certain. Garrison v. People, 151 Colo. 388, 378 P.2d 401 (1963).

The burden is upon a defendant to establish his incompetency. Leick v. People, 140 Colo. 564, 345 P.2d 1054 (1959).

The burden is upon the petitioner alleging incompetency to produce sufficient evidence to overcome the presumption of validity and regularity surrounding entry of his plea of guilty. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).

The burden is on defendant to prove incompetency by a preponderance of the evidence under pretrial statutory procedure, when a defendant raises the issue of incompetency after the alleged commission of the crime. Gomez v. District Court, 179 Colo. 299, 500 P.2d 134 (1972).

Standards for assessing accused's incompetency. An accused's competency must be assessed with specific reference to the nature of the proceeding with which he is confronted and the appropriate level of understanding necessary for meaningful cooperation with his attorney. Jones v. District Court, 617 P.2d 803 (Colo. 1980).

And must allow defendant time to request hearing. Trial court exceeded its jurisdiction when it made a preliminary finding of competency and simultaneously ordered the petitioner's attorney to present his motions on capital punishment issues without affording the petitioner the opportunity, within a time designated by the court, to request a statutory hearing on a final determination of competency in accordance with this section. Jones v. District Court, 617 P.2d 803 (Colo. 1980).

A final determination of competency cannot be made by a trial court without first affording a defendant the opportunity to challenge its preliminary finding. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).

By failing to immediately notify the defendant of preliminary finding of competency, and failing to set a time within which the defendant can request a hearing to challenge its preliminary finding, the trial court exceeded its jurisdiction and abused its discretion. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983); People v. Arkadie, 692 P.2d 1145 (Colo. App. 1984).

Evidence of defendant rebuts presumption of sanity. When evidence of insanity after commission of a crime is produced by defendant, the presumption that he was sane disappears, so that, if the people are to prevail, they must produce evidence of sanity to rebut that of insanity produced by the defendant. Gomez v. District Court, 179 Colo. 299, 500 P.2d 134 (1972).

And it was error not to find incompetency. Where no evidence had been introduced by prosecution to dispute that offered by petitioner that he was incompetent and incapable of conducting his defense in a rational and reasonable manner, trial court erred in not directing determination of incompetency. Gomez v. District Court, 179 Colo. 299, 500 P.2d 134 (1972).

Defendant's competence is an issue of fact and the trial court's findings will not be disturbed if adequately supported by evidence in the record. There was sufficient evidence to support the trial court's finding of competence where, although defendant had probably experienced a brief delusional episode during the trial, defendant had failed to prove by a preponderance of the evidence that she suffered from a mental disease or defect that rendered her incapable of understanding the nature and course of the proceedings or made her incapable of participating or assisting in her defense. People v. Corichi, 18 P.3d 807 (Colo. App. 2000).

Considerable latitude is allowed by the courts in admitting evidence which has a tendency to throw light on the mental condition of the defendant after the imposition of sentence provided the proof tends to prove or disprove the issue involved. Garrison v. People, 151 Colo. 388, 378 P.2d 401 (1963).

If evidence of a general type is otherwise competent, relevant and material, it is not inadmissible solely because it occurred prior to the time judgment and sentence entered in the criminal proceeding, or because it relates to his mental condition prior to such time. Garrison v. People, 151 Colo. 388, 378 P.2d 401 (1963).

Every act of the defendant's life relevant to the issue is admissible in evidence when the defense of insanity, general or partial, is set up. Garrison v. People, 151 Colo. 388, 378 P.2d 401 (1963).

Evidence of prior mental illness relevant. In a sanity trial evidence of a prior mental illness or abnormal conduct is relevant to the ultimate issue in the case, as such evidence renders the claimed inference of insanity more probable than it would be without the evidence. People v. Mack, 638 P.2d 257 (Colo. 1981).

Second competency determination not required. Although placing an accused on trial while he is incompetent violates due process of law, neither due process nor the defendant's right to effective assistance of counsel requires the court to grant a request for a second competency determination after the accused already has been granted an adequate hearing on his claimed incompetency. People v. Mack, 638 P.2d 257 (Colo. 1981).

Defendant failed to establish a due process violation or an abuse of discretion by the trial court in not ordering a second competency examination. People v. Stephenson, 165 P.3d 860 (Colo. App. 2007).

Upon receiving an incomplete second evaluation, a court should order that (1) the evaluator render an opinion based on the available information, if possible, despite the defendant's noncooperation or (2) the defendant be returned to the appropriate facility for further observation so that a competency opinion can be rendered. People v. Presson, 2013 COA 120M, 315 P.3d 198.

Court erred in proceeding to determine defendant's competency to stand trial when the second competency evaluation did not contain the statutorily required diagnosis, prognosis, and opinion, and the court declined to return defendant to the facility to complete the evaluation. People v. Presson, 2013 COA 120M, 315 P.3d 198.

The error was not harmless because defendant was unfairly deprived of a second contemporaneous evaluation, to which defendant was statutorily entitled; the court explicitly relied on defendant's refusal to cooperate with the second evaluator in finding defendant competent; evidence of defendant's competency was not overwhelming; and a retrospective competency determination would not cure the error. People v. Presson, 2013 COA 120M, 315 P.3d 198.

A trial court has the discretion to order a competency examination, and the statute does not restrict this discretion to formal examinations. The trial court did not abuse its discretion by relying on a medical examination in lieu of a formal competency examination. Bloom v. People, 185 P.3d 797 (Colo. 2008) (decided under repealed 16-8-111).

Error to exclude cross-examination of medical witness. In a post-conviction proceeding to determine the present mental condition of a defendant, refusal to permit cross-examination of a medical witness, who had testified that defendant was presently insane, as to his previous service on the commission which had determined defendant to be a mental incompetent, is erroneous. Garrison v. People, 151 Colo. 388, 378 P.2d 401 (1963).

Judicial review. Certain trial procedure safeguards are not applicable to the process of sentencing. This principle applies more forcefully to an effort to transplant every trial safeguard to a determination of incompetency after conviction. To require judicial review every time a convicted defendant suggests incompetency would make the possibility of carrying out a sentence depend upon fecundity in making suggestion after suggestion of incompetency. Leick v. People, 140 Colo. 564, 345 P.2d 1054 (1959).

Trial court applied the incorrect legal standards in finding defendant competent to stand trial and, thus, abused its discretion. Trial court improperly based competency determination solely on defendant's factual understanding of proceedings and cognitive ability with no consideration to whether defendant's perceptions and understandings were grounded in reality. People v. Mondragon, 217 P.3d 936 (Colo. App. 2009).

Motions to determine competency made under 16-8.5-102 must include threshold requirements, and trial courts retain sufficient discretion to reject the rare competency motion that rests on counsel's inadequate proffer. People v. Lindsey, 2020 CO 21, 459 P.3d 530.

Under the totality of the circumstances, including the competency motion filed by defendant's counsel that was bereft of specific facts supporting a good-faith doubt regarding defendant's competency, the trial court did not abuse its discretion in rejecting the motion as inadequate. People v. Lindsey, 2020 CO 21, 459 P.3d 530.

The court did not abuse its discretion in denying a third competency hearing where the third motion did not raise new indicia of incompetency nor a different medical or psychological explanation regarding the defendant who was previously examined twice and determined to be competent. People v. Rodriguez, 2022 COA 98, 521 P.3d 678.

Applied in Massey v. District Court, 180 Colo. 359, 506 P.2d 128 (1973); People v. Scherrer, 670 P.2d 18 (Colo. App. 1983).