16-8.5-111. Procedure after determination of competency or incompetency
(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 charged with an offense as outlined in section 16-8.5-116 (7) and the competency evaluation has determined that the defendant meets the standard for civil certification pursuant to article 65 of title 27, the court may forgo any order of restoration and immediately order that proceedings be initiated by the county attorney or district attorney required to conduct proceedings pursuant to section 27-65-111 (6) for the civil certification of the defendant and dismiss the charges without prejudice in the interest of justice once civil certification proceedings have been initiated.
(a.5) If the evaluator has provided an opinion that the defendant is incompetent to proceed and there is not a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future pursuant to section 16-8.5-105 (5)(e)(I)(B), (5)(e)(I)(C), or (5)(e)(I)(D), in lieu of ordering restoration treatment the court shall set a hearing within thirty-five days of receiving the report on the issue of whether there is a substantial probability that the defendant will be restored to competency within the reasonably foreseeable future, and in the case of a finding pursuant to section 16-8.5-105 (5)(e)(I)(D), maintain competency through the adjudication of the case. At the hearing, there is a presumption that the defendant will not attain competency within the reasonably foreseeable future. A party attempting to overcome that presumption must prove by a preponderance of the evidence that there is a substantial probability that restoration efforts will be successful within the reasonably foreseeable future. At the conclusion of the hearing when there is an opinion pursuant to section 16-8.5-105 (5)(e)(I)(D), if the court finds that there is not a substantial probability that the defendant will be restored to competency within the reasonably foreseeable future and maintain competency throughout the case, the court shall dismiss the case and may consider ordering the initiation of proceedings pursuant to section 16-8.5-116 (6)(b) or (6)(c). If the court determines that there is insufficient evidence to make an immediate finding of no substantial probability of restoration to competency within the reasonably foreseeable future, then the court shall order restoration education for an initial period of time not to exceed ninety-one days as provided for in this section and review of the case pursuant to section 16-8.5-116 (3) and (4). At the initial and subsequent review hearings, if the evaluator continues to opine that the defendant is incompetent to proceed and still unlikely to be restored, the court shall presume that there is not a substantial probability that the defendant will be restored to competency within the reasonably foreseeable future and maintain competency through the adjudication of the case, and the court shall dismiss the case unless there is clear and convincing evidence that the person has made progress toward attaining competency and can maintain competency through the adjudication of the case. If the case is ordered dismissed, the department will have the same obligations pursuant to section 16-8.5-105 (5)(e)(I).
(b) (I) If the defendant is on bond or summons, the court shall order that restoration to competency take place on an outpatient basis, unless the department recommends inpatient restoration services pursuant to section 16-8.5-105 (5)(e)(II).
(II) (A) If the defendant is in custody and the recommendation is for outpatient restoration services, the court shall consider the release of the defendant on bond consistent with article 4 of this title 16 and the Colorado rules of criminal procedure.
(B) As a condition of bond, the court shall order that the restoration take place on an outpatient basis. Pursuant to section 27-60-105, the department through the office of behavioral health is the entity responsible for the oversight of restoration education and coordination of all competency restoration services. As a condition of release for outpatient restoration services, the court may require pretrial services, if available, to work with the department and the restoration services provider under contract with the department to assist in securing appropriate support and care management services, which may include housing resources. The individual agency responsible for providing outpatient restoration services for the defendant shall notify the court or other designated agency within twenty-one days if restoration services have not commenced.
(C) When the defendant is in custody on a misdemeanor, petty offense, or traffic offense, the court, within seven days of the defendant being found incompetent to proceed, shall set a hearing on bond. At the bond hearing there is a presumption that the court shall order a personal recognizance bond. If the court does not order a personal recognizance bond and the defendant is committed for inpatient restoration, the court must make findings of fact that extraordinary circumstances exist to overcome the presumption of a release and the clinical recommendation for outpatient treatment by clear and convincing evidence.
(c) If the court finds that the defendant is not eligible for release from custody or not able to post the monetary condition of bond, 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 pursuant to 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.
(d) If the court has ordered outpatient restoration services and the department determines that it is unable, within a reasonable time, to provide restoration services on an outpatient basis, the department shall notify the court within fourteen days after its determination, at which point the court shall review the case and determine what interim mental health services can be provided within the community by the department or other community provider. The department shall report to the court liaison every ten days thereafter concerning the availability of restoration services on an outpatient basis.
(e) If the court commits the defendant to the custody of the department, the executive director has the same powers with respect to a commitment provided for in section 16-8-105.5 (4).
(f) (I) If the court has ordered inpatient restoration services, the department shall provide restoration services at an appropriate inpatient restoration services program. On and after July 1, 2019, the department shall offer tier 1 defendants admission for restoration services within seven days after receipt of the court order and collateral materials. On and after July 1, 2021, the department shall offer admission to tier 2 defendants within twenty-eight days after receipt of the court order and collateral materials. For tier 2 defendants, the department shall advise the court and the court liaison every ten days after the initial twenty-eight day period regarding the availability of a bed and when admission will be offered.
(II) If the defendant is not offered admission and transported to the inpatient restoration services program within the time frames provided or in accordance with other court orders, the court may:
(A) Review the case for consideration of outpatient restoration services and appropriate and necessary case management services coordinated with the department; the court liaison; and pretrial services, if available; or
(B) Make any other order determined to be necessary in order to secure the necessary restoration services.
(g) If a defendant is receiving inpatient restoration services and the executive director concludes that a less restrictive facility would be more clinically appropriate, the executive director, with proper notice to the court, and consistent with the provisions of part 3 of article 4.1 of title 24, has the authority to move the defendant to a less restrictive facility if, in the executive directors opinion, the defendant is not yet restored to competency but he or she could be properly restored to competency in a less restrictive facility. If the defendant is not released from custody, the court shall order the department to provide inpatient services at a location determined by the department.
(h) (I) If the defendant is receiving inpatient restoration services and the executive director concludes that community-based restoration services would be more clinically appropriate, the department shall:
(A) Notify the court and request that the defendant be considered for release on a nonmonetary bond if the defendant is not currently released on bond; and
(B) Provide to the court information regarding the appropriate outpatient restoration services, developed in conjunction with the court liaison, and the reasons why the defendant could be properly restored to competency on an outpatient basis.
(II) The court shall rule on the request within fourteen days after receipt of the request from the department.
(3) (a) When the department submits a report to the court that it is the position of the department that the defendant is restored to competency, the defendant may be returned to the custody of the county jail. If the recommendation is that the defendant be returned to the custody of the county jail, the department shall notify the sheriff of the jurisdiction where the defendant is to be returned and the court liaison. Within seventy-two hours after receipt of the notice, the sheriff shall return the defendant to the jail. When a defendant is transferred to the physical custody of the sheriff, the department shall work with the sheriff and any behavioral health providers in the jail to ensure that the jail has the necessary information to prevent any decompensation by the defendant while the defendant is in jail, which must include medication information when clinically appropriate. The report to the court must also include a statement that the department is returning the defendant to the custody of the county jail.
(b) If the defendant was released on bond prior to the inpatient hospitalization, the defendant must be released pursuant to the bond with the conditions imposed by the court. The department shall assist the defendant with any and all necessary transportation and provide the necessary case and medication information for the defendant to the community agency that will provide ongoing services and medication support. The department shall notify the court and the court liaison that the department is returning the defendant to the community on bond status. The department, the court liaison, and the court, including pretrial services, shall coordinate to ensure that the defendant is advised of his or her next court appearance and all of the required terms and conditions of the release on bond.
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. L. 2019: (2) amended and (3) added, (SB 19-223), ch. 227, p. 2280, 5, effective July 1. L. 2020: (2)(a) and (2)(b)(II) amended and (2)(a.5) added, (SB 20-181), ch. 144, p. 625, 2, effective June 29; (2)(a) amended, (SB 20-136), ch. 70, p. 283, 8, effective September 14.
Editors note: (1) This section is similar to former 16-8-112 as it existed prior to 2008.
(2) Amendments to subsection (2)(a) by SB 20-136 and SB 20-181 were harmonized.
Cross references: (1) For release on bail, see part 1 of article 4 of this title 16.
(2) For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.
Annotators 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.
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 judges 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).
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 .
Applied in People v. Chavez, 629 P.2d 1040 (Colo. 1981).