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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