ENGROSSED
Senate Bill No. 398
(By Senators Wooton, Ball, Bowman, Dittmar, Fanning, Hunter,
Kessler, Oliverio, Ross, Schoonover, Snyder, Buckalew and Deem)
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[Originating in the Committee on the Judiciary;
reported February 4, 1998.]
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A BILL to amend and reenact sections two and four, article six-a,
chapter twenty-seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to
the commitment of certain persons found incompetent to stand
trial; determination of mental competency to stand trial;
hearings procedure; findings required; jurisdiction of court;
release; and disclosure from court jurisdiction.
Be it enacted by the Legislature of West Virginia:
That sections two and four, article six-a, chapter twenty- seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 6A. COMMITMENT OF PERSONS CHARGED OR CONVICTED OF A CRIME
.
§27-6A-2. Hearing on competency to stand trial; findings.
(a) At a hearing to determine a defendant's competency to stand trial, the defendant shall be present and he
or she shall
have the right to be represented by counsel and introduce evidence
and cross-examine witnesses. The defendant shall be afforded
timely and adequate notice of the issues
of at the hearing and
shall have access to a summary of the medical evidence to be
presented by the state. The defendant shall have the right to an
examination by an independent expert of his
or her choice and
testimony from such expert as a medical witness on his
or her
behalf. All rights generally afforded a defendant in criminal
proceedings shall be afforded to a defendant in such competency
proceedings
except trial by jury.
(b) At the termination of such hearing the court of record
shall make a finding of fact upon a preponderance of the evidence
as to the
individual's defendant's competency to stand trial based
on whether or not the
individual defendant is capable of
participating substantially in his
or her defense and understanding
the nature and consequences of a criminal trial. If the
individual
defendant is found competent, the court of record shall forthwith
proceed with the criminal proceedings. If the
individual defendant
is found incompetent to stand trial, the court of record shall upon
the evidence make further findings as to whether or not there is a
substantial likelihood that the
individual defendant will attain
competency within the next ensuing six months, and if the court of
record so finds, the
individual defendant may be committed to a
mental health facility for an improvement period not to exceed six months. If requested by the chief medical officer of the mental
health facility on the grounds that additional time is necessary
for the
individual defendant to attain competency, the court of
record may, prior to the termination of the six-month period,
extend the period for an additional three months. Within ten days
of the termination of such period, the court of record shall
ascertain by hearing in accordance with subsection (a) of this
section whether or not the
individual defendant has attained
competency to stand trial.
(c) If the
individual is defendant has been indicted
or
charged for with a misdemeanor
or felony not involving violence
against a person and is found to be incompetent to stand trial with
no substantial likelihood of obtaining competency, or if after such
improvement period the
individual defendant is found to be
incompetent to stand trial, the criminal charges shall be
dismissed. The dismissal order may be stayed for ten days to allow
civil commitment proceedings to be instituted pursuant to article
five of this chapter.
(d) If the
individual is a defendant
in a felony case has been
indicted or charged with a misdemeanor or felony involving violence
against a person or a felony and
, upon hearing: (1) The defendant
is found initially to be incompetent to stand trial with no
substantial likelihood of obtaining competency; or
(2) after
such
an improvement period
pursuant to subsection (b) of this section,
the
individual defendant is found to be incompetent to stand trial
and is found to be a danger to self or others, then
the director of
health shall institute against the individual civil commitment
proceedings pursuant to article five of this chapter and the
criminal charges shall be dismissed. If the individual is
committed pursuant to article five of this chapter, then the
director of health shall cause the individual's competency to stand
trial to be reviewed every six months during the period of his
civil commitment, and shall report his findings to the court of
record after every such review. If the director of health finds
that the individual is competent to stand trial, then a hearing
shall be held by the court of record in accordance with subsection
(a) of this section. If, after such hearing, the individual is
found competent to stand trial, he shall be tried; if, after such
hearing, the individual is found incompetent to stand trial, he
shall be recommitted for the period of his commitment as ordered
pursuant to article five of this chapter, with mandatory review of
his competency to stand trial every six months in accordance with
this subsection. If said individual becomes competent to stand
trial, the director of health shall notify the prosecuting attorney
of the county where the criminal charges were brought against the
individual the court shall maintain jurisdiction over the defendant
and shall commit the defendant to a mental health facility under
the authority of the department of health and human resources. The
defendant's supervising physician shall cause the defendant's
competency to stand trial and dangerousness to self or others to be reviewed every six months during the period of his or her inpatient
hospitalization.
(e) If the defendant has been indicted or charged with a
misdemeanor or felony involving violence against a person, upon
notice from the medical director of the mental health facility that
the defendant no longer constitutes a danger to self or others
along with an alternative disposition plan which sets forth in
detail a treatment plan for the defendant designed to allow his or
her release without endangering the public, the court shall
promptly conduct a hearing. The clerk shall give notice of the
hearing to the prosecuting attorney and the victim or next of kin
of the victim of the offense for which the person was committed.
The burden shall be on the victim or next of kin of the victim to
keep the court apprised of that person's current mailing address.
After hearing, the court may order the release from
hospitalization of a defendant found incompetent to stand trial due
to mental illness, addiction or retardation prior to the expiration
of the court's jurisdiction only when the court finds that the
defendant is no longer a danger to self or others: Provided, That
a defendant may be released from inpatient hospitalization by the
court when the defendant's mental illness is in remission solely as
a result of medication or hospitalization or other mode of
treatment only if it can be determined by clear and convincing
evidence that with continued outpatient therapy or other mode of
outpatient treatment, the defendant's mental illness does not make him or her a danger to self or others.
(f) The prosecuting attorney shall, by motion, cause the
competency to stand trial of a defendant released pursuant to
subsection (e) of this section to be determined at least every six
months while the defendant remains under the jurisdiction of the
court. A defendant placed under the jurisdiction of the court
pursuant to the provisions of subsection (d) of this section shall
remain under the court's jurisdiction until the expiration of the
maximum possible sentence the defendant could have received if
convicted unless the defendant regains competency and the criminal
charges reach resolution or the court, upon motion of the
prosecuting attorney, dismisses the indictment or charge.
§27-6A-4. Release from jurisdiction of the court; discharge.
(a) No later than thirty days prior to the release of a
defendant because of the expiration of the court's jurisdiction, if
the defendant's supervising physician believes that the defendant's
mental illness or mental retardation or addiction causes the
defendant to be dangerous to self or others, the supervising
physician shall notify the prosecuting attorney in the county of
the court having jurisdiction of such opinion and the basis
therefor. Following this notification, the prosecuting attorney
shall file a civil commitment application against the defendant,
pursuant to article five of this chapter.
(b)
Except as provided in subsection (f), section two of this
article, the court may discharge a mentally ill or addicted defendant from the court's
period of jurisdiction prior to the
expiration of the period specified in this section only when the
court finds that the person is no longer mentally ill or addicted
and that the person is no longer a danger to self or others. The
court may discharge a mentally retarded defendant from the court's
period of jurisdiction prior to the expiration of the period
specified in this section only when the court finds that the person
is no longer a danger to self or others. However, a defendant may
not be released from the jurisdiction of the court when the
defendant's mental illness is in remission solely as a result of
medication or hospitalization or other mode of treatment
only if it
can be determined within a reasonable degree of medical certainty
that without continued therapy or hospitalization or other mode of
treatment, the defendant's mental illness will make him
or her a
danger to self or others.
(c) Those persons committed under the provisions of this
article may be released or discharged from the inpatient mental
health facility only upon entry of an order from the court of
record which committed the defendant, finding that the defendant
will not be a danger to self or others if so released, based upon
the evidence
introduced admitted at the hearing.
(d) The court shall promptly conduct a hearing after receipt
of the physician's notification referred to in subsection (a) of
this section. The clerk shall notify the prosecuting attorney and
the victim or next of kin of the victim of the offense for which the
person defendant was committed of the hearing. The burden
shall be on the victim or next of kin
to of the victim to keep the
court apprised of
that person's the defendant's current mailing
address.