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2003 SESSION
030381748Be it enacted by the General Assembly of Virginia:
1. That § 19.2-169.3 of the Code of Virginia is amended and reenacted as follows:
§ 19.2-169.3. (Effective until July 1, 2004) Disposition of the unrestorably incompetent defendant.
A. If, at any time after the defendant is ordered to undergo treatment pursuant
to subsection A of § 19.2-169.2, the director of the treating facility
concludes that the defendant is likely to remain incompetent for the foreseeable
future, he shall send a report to the court so stating. The report shall also
indicate whether, in the director's opinion, the defendant should be released,
committed pursuant to § 37.1-67.3, or certified pursuant to § 37.1-65.1 in the
event he is found to be unrestorably incompetent. Upon receipt of the report, the court
shall make a competency determination according to the procedures specified in subsection
E of § 19.2-169.1. If the court finds that the defendant is incompetent and is
likely to remain so for the foreseeable future, it shall order that he be (i)
released, (ii) committed pursuant to § 37.1-67.3, or (iii) certified pursuant
to § 37.1-65.1. If the court finds the defendant incompetent but restorable to
competency in the foreseeable future, it may order treatment continued until
six 6 months have elapsed from the date of the defendant's initial
admission under subsection A of § 19.2-169.2.
B. At the end of six 6 months from the date of the defendant's initial
admission under subsection A of § 19.2-169.2 if the defendant remains
incompetent in the opinion of the director, the director shall so notify the
court and make recommendations concerning disposition of the defendant as
described above. The court shall hold a hearing according to the procedures
specified in subsection E of § 19.2-169.1 and, if it finds the defendant
unrestorably incompetent, shall order one 1 of the dispositions described
above. If the court finds the defendant incompetent but restorable to competency, it may order
continued treatment under subsection A of § 19.2-169.2 for additional
six6-month periods, provided a hearing pursuant to
subsection E of § 19.2-169.1 is held at the completion of each such period and
the defendant continues to be incompetent but restorable to competency in the
foreseeable future.
C. If not dismissed without prejudice at an earlier time, charges against an
unrestorable incompetent defendant shall be dismissed without prejudice on the
date upon which his sentence would have expired had he been convicted and received the
maximum sentence for the crime charged, or on the date five 5 years from the
date of his arrest for such charges, whichever is sooner.
D. In any case when an incompetent defendant is charged with capital murder, notwithstanding any other provision of this section, the charge shall not be dismissed and the court having jurisdiction over the capital murder case may order that the defendant receive continued treatment under subsection A of § 19.2-169.2 for additional 6-month periods without limitation, provided that (i) a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of each such period, (ii) the defendant remains incompetent, (iii) the court finds continued treatment to be medically appropriate and (iv) the defendant presents a danger to himself or others.
§ 19.2-169.3. (Effective July 1, 2004) Disposition of the unrestorably incompetent defendant.
A. If, at any time after the defendant is ordered to undergo treatment pursuant
to subsection A of § 19.2-169.2, the director of the treating facility
concludes that the defendant is likely to remain incompetent for the
foreseeable future, he shall send a report to the court so stating. The report
shall also indicate whether, in the director's opinion, the defendant should be
released, committed pursuant to § 37.1-67.3, committed pursuant to § 37.1-70.9,
or certified pursuant to § 37.1-65.1 in the event he is found to be
unrestorably incompetent. Upon receipt of the report, the court shall make a
competency determination according to the procedures specified in subsection E
of § 19.2-169.1. If the court finds that the defendant is incompetent and is
likely to remain so for the foreseeable future, it shall order that he be (i)
released, (ii) committed pursuant to § 37.1-67.3, (iii) reviewed for commitment
pursuant to § 37.1-70.6, or (iv) certified pursuant to § 37.1-65.1. If the
court finds the defendant incompetent but restorable to competency in the foreseeable
future, it may order treatment continued until six 6 months have elapsed from
the date of the defendant's initial admission under subsection A of §
19.2-169.2.
B. At the end of six 6 months from the date of the defendant's initial
admission under subsection A of § 19.2-169.2 if the defendant remains
incompetent in the opinion of the director, the director shall so notify the court
and make recommendations concerning disposition of the defendant as described
above. The court shall hold a hearing according to the procedures specified in
subsection E of § 19.2-169.1 and, if it finds the defendant unrestorably
incompetent, shall order one 1 of the dispositions described above. If the
court finds the defendant incompetent but restorable to competency, it may order continued treatment
under subsection A of § 19.2-169.2 for additional six6-month periods, provided
a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of
each such period and the defendant continues to be incompetent but restorable to
competency in the foreseeable future.
C. If Unless an incompetent defendant is charged with capital murder or the
charges against an incompetent criminal defendant have not been previously
dismissed without prejudice at an earlier time, charges against an
unrestorably incompetent defendant shall be dismissed without prejudice on the
date upon which his sentence would have expired had he been convicted and
received the maximum sentence for the crime charged, or on the date five 5
years from the date of his arrest for such charges, whichever is sooner.
D. If the court orders an unrestorably incompetent defendant to be reviewed for commitment pursuant to § 37.1-70.6, it shall order the attorney for the Commonwealth in the jurisdiction wherein the defendant was charged and the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services to provide the Attorney General with any information relevant to the review, including, but not limited to: (i) a copy of the warrant or indictment, (ii) a copy of the defendant's criminal record, (iii) information about the alleged crime, (iv) a copy of the competency report completed pursuant to § 19.2-169.1, and (v) a copy of the report prepared by the director of the defendant's treating facility pursuant to this section. The court shall further order that the defendant be held in the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services for secure confinement and treatment until the Attorney General's review and any subsequent hearing or trial are completed. If the court receives notice that the Attorney General has declined to file a petition for the commitment of an unrestorably incompetent defendant as a sexually violent predator after conducting a review pursuant to § 37.1-70.6, the court shall order that the defendant be released, committed pursuant to § 37.1-67.3, or certified pursuant to § 37.1-65.1.
E. In any case when an incompetent defendant is charged with capital murder, notwithstanding any other provision of this section, the court having jurisdiction over the capital murder case may order that the defendant receive continued treatment under subsection A of § 19.2-169.2 for additional 6-month periods without limitation, provided that (i) a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of each such period, (ii) the defendant remains incompetent, (iii) the court finds continued treatment to be medically appropriate, and (iv) the defendant presents a danger to himself or others.
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