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16-8.5-111. Procedure after determination of competency or incompetency.

Statute text

(1) If the final determination made pursuant to section 16-8.5-103 is that the defendant is competent to proceed, the judge shall order that the suspended proceeding continue or, if a mistrial has been declared, shall reset the case for trial at the earliest possible date.

(2) If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed, the court has the following options:

(a) If the defendant is on bond or summons, the court shall consider whether restoration to competency should occur on an outpatient and out-of-custody basis. If the defendant is in custody, the court may release the defendant on bond upon compliance with the standards and procedures for such release prescribed by statute and by the Colorado rules of criminal procedure. As a condition of bond, the court may require the defendant to obtain any treatment or habilitation services that are available to the defendant, such as inpatient or outpatient treatment at a community mental health center or in any other appropriate treatment setting, as determined by the court. Nothing in this section authorizes the court to order community mental health centers or other providers to provide treatment for persons not otherwise eligible for these services. At any hearing to determine eligibility for release on bond, the court shall consider any effect the defendant's incompetency may have on the court's ability to ensure the defendant's presence for hearing or trial. There is a presumption that the defendant's incompetency will inhibit the defendant's ability to ensure his or her presence for trial. Pursuant to section 27-60-105, the office of behavioral health is the entity responsible for the oversight of restoration education and coordination of services necessary to competency restoration.

(b) If the court finds that the defendant is not eligible for release from custody, the court may commit the defendant to the custody of the department, in which case the executive director has the same powers with respect to commitment as the executive director has following a commitment under section 16-8-105.5 (4). At such time as the department recommends to the court that the defendant is restored to competency, the defendant may be returned to custody of the county jail or to previous bond status.


Source: L. 2008: Entire article added, p. 1845, 2, effective July 1. L. 2017: (2)(a) amended, (SB 17-012), ch. 404, p. 2108, 1, effective August 9.


Editor's note: This section is similar to former 16-8-112 as it existed prior to 2008.


Cross references: For release on bail, see part 1 of article 4 of this title.





The court of appeals can order a limited remand to the district court for restoration proceedings pursuant to this section for future determination of motions to dismiss counsel and dismiss the appeal. People v. Liggett, 2018 COA 94M, __ P.3d __ [published October 18, 2018].




Annotator's note. Since 16-8.5-111 is similar to repealed 16-8-112, relevant cases construing that provision have been included in the annotations to this section.

Purpose of section. This section considers the interests of both society and the individual accused and strikes a fair balance. A person who is found to be incompetent is treated and confined only to the extent necessary for the protection of society. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

Commitment does not deny defendant due process. The fact that the defendant may be committed to an institution for an indefinite period of time, before trial and pending the regaining of competency, affords and does not deny the defendant due process. Schwader v. District Court, 172 Colo. 474, 474 P.2d 607 (1970).

A finding of incompetence to stand trial only results in an abatement of the criminal proceedings. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

Court retains jurisdiction during confinement. During confinement the court which commits the accused retains jurisdiction to oversee his commitment and to protect his constitutional rights and should do so. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

And it is the trial judge's duty to make periodic checks to determine the status and condition of an incompetent who has criminal charges pending against him under any valid statute and who has been committed after a finding of incompetence to stand trial. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

During commitment, there can be no final judgment subject to appeal. Where defendant was committed following a determination that he became incompetent subsequent to alleged offense, and the issue raised by a plea of not guilty remains unresolved until defendant is determined to be able to stand trial, there can be no final judgment from which an appeal can be taken, as the litigation has not yet been terminated on its merits. Rupert v. People, 156 Colo. 277, 398 P.2d 434 (1965).

Section does not preclude the release on bail of a person who is determined to be incompetent and charged with a violent crime. People v. White, 819 P.2d 1096 (Colo. App. 1991).

Applied in People v. Chavez, 629 P.2d 1040 (Colo. 1981).