Senate Bill No. 552
(By Senators Wooton, Dittmar and Schoonover)
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[Originating in the Committee on the Judiciary;
reported April 2, 1997.]
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A BILL to amend and reenact section two, article six-a, chapter
twenty-seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to commitment of
persons charged with crimes who are incompetent to stand
trial; release of persons no longer deemed dangerous to self
or others; requirement of judicial hearing; and requirement of
alternative disposition plan.
Be it enacted by the Legislature of West Virginia:
That section two, article six-a, chapter twenty-seven of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted 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 shall have the right to be presented by counsel and introduce evidence and cross- examine witnesses. The defendant shall be afforded timely and
adequate notice of the issues of 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 choice and testimony from such expert as
a medical witness on his behalf. All rights generally afforded a
defendant in criminal proceedings shall be afforded to a defendant
in such competency proceedings.
(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 competency to stand trial based on whether
or not the individual is capable of participating substantially in
his defense and understanding the nature and consequences of a
criminal trial. If the individual is found competent, the court of
record shall forthwith proceed with the criminal proceedings. If
the individual 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 will
attain competency within the next ensuing six months, and if the
court of record so finds, the individual 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 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 has attained competency to stand trial.
(c) If the individual is indicted for a misdemeanor and is
found to be incompetent to stand trial with no substantial
likelihood of obtaining competency, or if after such improvement
period the individual 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 and is
found initially to be incompetent to stand trial with no
substantial likelihood of obtaining competency, or if after such
improvement period the individual is found to be incompetent to
stand trial, 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 jurisdiction of the
department of health. The court shall maintain jurisdiction over
the defendant for the maximum possible sentence the defendant could
receive if convicted.
(e) The court may order the release from hospitalization of a
mentally ill person found incompetent due to a mental illness or
addiction to stand trial 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 order the release
from hospitalization of 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 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 if it
can be determined within a reasonable degree of medical certainty
that with continued outpatient therapy or other mode of outpatient
treatment, the defendant's mental illness do not make him a danger
to self or others.
(f) 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 at a hearing held before release.
(g) The court shall promptly conduct a hearing after receipt
of notification from the supervising physician 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 clerk shall notify the prosecuting
attorney and the victim or next of kin of the victim of the offense
for which the person was committed of the hearing. The burden
shall be on the victim or next of kin to the victim to keep the
court apprised of that person's current mailing address.
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NOTE: The purpose of this bill is to make the law regarding
disposition of cases involving persons charged with crimes but
determined to be incompetent to stand trial to be consistent with
the law for those found not guilty by reason of insanity.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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