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2008 SESSION
087939840Patrons-- Melvin, Brink, Hamilton, Morgan and O'Bannon; Senators: Blevins and Puller
Be 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. Disposition of the unrestorably incompetent defendant; capital murder charge; referral to Commitment Review Committee.
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 community services board or behavioral health authority or his designee or the director of the treating inpatient facility or his designee 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 board, authority, or inpatient facility director's or his designee's opinion, the defendant should be released, committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, committed pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, or certified pursuant to § 37.2-806 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 Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, or (iii) certified pursuant to § 37.2-806. However, if the court finds that the defendant is incompetent and is likely to remain so for the foreseeable future and the defendant has been charged with a sexually violent offense, as defined in § 37.2-900, he shall be reviewed for commitment pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title 37.2. If the court finds the defendant incompetent but restorable to competency in the foreseeable future, it may order treatment continued until six 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 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 board, authority, or inpatient facility director or his designee, the director or his designee shall so notify the court and make recommendations concerning disposition of the defendant as described in subsection A. 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 of the dispositions described in subsection A. 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 six-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 any defendant has been charged only with a misdemeanor, other than a misdemeanor involving a threat, attempt or the actual infliction of physical harm, and is being treated pursuant to subsection A of § 19.2-169.2, and after 45 days has not been restored to competency, the director of the community service board, behavioral health authority, or the director of the treating inpatient facility, or any of their designees, shall send a report indicating the defendant's status to the court. The report shall also indicate, pursuant to § 37.2-814, whether the defendant should be released or committed, or pursuant to § 37.2-806, certified. Upon receipt of the report, if the court determines that the defendant is still incompetent, the charges against the defendant shall be dismissed and the court shall order that the defendant be released, committed, or certified.
CD.
Unless an incompetent defendant is charged with capital murder or the charges against
an incompetent criminal defendant have been previously dismissed, charges
against an unrestorably incompetent defendant shall be dismissed 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 years from the
date of his arrest for such charges, whichever is sooner.
DE. If
the court orders an unrestorably incompetent defendant to be reviewed for
commitment pursuant to § 37.2-904, 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 Commitment Review Committee established
pursuant to § 37.2-902 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 community
services board, behavioral health authority, or treating inpatient facility or
his designee 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 Commitment Review Committee's and 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 § 37.2-905, the court shall order that the
defendant be released, committed pursuant to Article 5 (§ 37.2-814 et seq.) of
Chapter 8 of Title 37.2, or certified pursuant to § 37.2-806.
EF. 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 six-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.
FG. The
attorney for the Commonwealth may bring charges that have been dismissed
against the defendant when he is restored to competency.