CO Code § 16-8.5-116 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 8.5 - Competency to Proceed|§ 16-8.5-116. Certification - Reviews - Termination of Proceedings - Rules

  [ ] Subject to the time periods and legal standards set forth in this section, whichever is shortest, a defendant committed to the custody of the department or otherwise confined as a result of a determination of incompetency to proceed must not remain confined for a period in excess of the maximum term of confinement that could be imposed for only the single most serious offense with which the defendant is charged, less fifty percent. At the end of such time period, the court shall dismiss the charges, and certification proceedings or provision of services, if any, are governed by article 65 or 10.5 of title 27.      Within ninety-one days after the entry of the court's order of commitment, the court shall review the case of a defendant who has been determined to be incompetent to proceed with regard to the probability that the defendant will eventually be restored to competency and with regard to the justification for certification or confinement. The review may be held in conjunction with a restoration hearing held pursuant to section 16-8.5-113. However, if at the review hearing, there is a request by the defendant for a restoration hearing pursuant to section 16-8.5-113, the court shall set the restoration hearing within thirty-five days after the request pursuant to the provisions of section 16-8.5-113.    On and after July 1, 2020, at least ten days before each review, the individual or entity evaluating the defendant shall provide the court with a report describing:   An opinion regarding the defendant's competency;    Whether there is a substantial probability that the defendant will be restored to competency within the reasonably foreseeable future;    Whether there is a substantial probability that the defendant will be restored to competency within the time periods established by this section;    Whether the defendant meets the requirements for certification set forth in article 65 of title 27 or is eligible for services pursuant to article 10.5 of title 27;    Any and all efforts made for restoration through medication, therapy, education, or other services and the outcome of those efforts in relation to restoring the defendant to competency;    Whether there is a substantial probability that the defendant will be restored to competency and remain competent with the use of medications or will not remain competent without the use of forced medication;    If the defendant has failed to cooperate with treatment, whether the incompetency and mental or intellectual and developmental disability contributes to the defendant's refusal or inability to cooperate with restoration or prevents the ability of the defendant to cooperate with restoration; and    A summary of the observations of the defendant by the treating staff at the facility or other location where inpatient services were delivered.       Additionally, on and after July 1, 2020, at least ten days before each review, the department treating team shall provide to the court an additional report that summarizes:   What restorative education has been provided and the frequency of that education;    What medication has been administered, including voluntary or involuntary medications;    What release plans have been made for the defendant after release, including a discussion of the support from family members;    Whether or not the defendant would agree to voluntary admission to the hospital for certification pursuant to article 65 of title 27;    The opinion of the treating team on the defendant's mental health functioning and ability to function on an outpatient basis for restoration services; and    Whether the defendant, based on observations of the defendant's behavior in the facility, presents a substantial risk to the physical safety of himself or herself, of another person, or of the community if released for community restoration.          After the initial review pursuant to subsection (2)(a) of this section, the court shall review the case of the defendant every ninety-one days thereafter until four reviews have been conducted. At least ten days before each review, the individual or entity evaluating the defendant shall provide the court with an updated report as described in subsection (2)(b) of this section and the treatment staff shall provide an updated summary of observations as described in subsection (2)(c) of this section.    After the fourth review, the court shall review the competency of the defendant every sixty-three days until the defendant is restored to competency or the court determines, based on available evidence, that there is not a substantial probability that the defendant will be restored to competency in the foreseeable future and in that case, the court shall dismiss the case.    The court shall forward a copy of each report and summary received pursuant to subsections (2), (3), and (4) of this section to the county attorney or district attorney required to conduct proceedings pursuant to section 27-65-111 (6) for the county in which the case is pending and to the court liaison.    Notwithstanding the time periods provided in subsections (7), (8), and (9) of this section and to ensure compliance with relevant constitutional principles, for any offense for which the defendant remains confined as a result of a determination of incompetency to proceed if the court determines, based on available evidence, that there is not a substantial probability that the defendant will be restored to competency within the reasonably foreseeable future, the court may order the defendant's release from commitment pursuant to this article 8.5 through one or more of the following means:   Upon motion of the district attorney, the defendant, or on its own motion, the court may terminate the criminal proceedings, the commitment, or the restoration services order;    The court may, in coordination with the county attorney or district attorney required to conduct proceedings pursuant to section 27-65-111 (6) for the county in which the defendant is charged, order the commencement of certification proceedings pursuant to the provisions of article 65 of title 27 if the defendant meets the requirements for certification pursuant to article 65 of title 27;    In the case of a defendant who has been found eligible for services pursuant to article 10.5 of title 27 due to an intellectual and developmental disability, the court or a party may initiate an action to restrict the rights of the defendant pursuant to article 10.5 of title 27; or    On and after July 1, 2020, the department shall ensure that case management services and support are made available to any defendant released from commitment pursuant to this article 8.5 due to the substantial probability that the defendant will not be restored to competency in the reasonable foreseeable future.       At any review hearing held concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement, subject to the provisions of subsection (10) of this section, if:   The defendant:   Is charged with a misdemeanor, a misdemeanor drug offense, a petty offense, or a traffic offense;    Has been committed to the custody of the department or otherwise confined as a result of a determination of incompetency to proceed;    Has received competency restoration services while committed or otherwise confined for an aggregate time of six months; and       The court determines, based on available evidence, that the defendant remains incompetent to proceed.       At any review hearing held concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement, subject to the provisions of subsection (10) of this section, if:   The defendant:   Is charged with a class 5 or class 6 felony, except for those offenses enumerated in section 24-4.1-302 (1); with a level 3 or level 4 drug felony; or with any misdemeanor offense that is not included in subsection (7) of this section;    Has been committed to the custody of the department or otherwise confined as a result of a determination of incompetency to proceed; and    Has received competency restoration services while committed or otherwise confined for an aggregate time of one year; and       The court determines, based on available evidence, that the defendant remains incompetent to proceed.       If the defendant is charged with any other felony offense except a class 1, 2, or 3 felony offense; a sex offense as defined in section 18-1.3-1003 (5); a crime of violence as defined in section 18-1.3-406 (2); or a level 1 or level 2 drug felony, and has been committed to the custody of the department or otherwise confined as a result of a determination of incompetency to proceed, the following provisions apply:   If the defendant has received competency restoration services while committed or otherwise confined for an aggregate time of two years and the court determines, based on available evidence, that the defendant is not restored to competency, then the court shall dismiss the charges against the defendant, subject to the provisions of subsection (10) of this section, unless any party objects to dismissal.    If a party objects to dismissal of charges pursuant to subsection (9)(a) of this section, the court shall set the matter for a hearing. Upon completion of the hearing, the court shall dismiss the charges unless the court determines that the party objecting to the dismissal establishes by clear and convincing evidence that there is a compelling public interest in continuing the prosecution and there is a substantial probability that the defendant will attain competency in the foreseeable future. If the court declines to dismiss the charges, the court shall address the appropriateness of continued confinement and may alter or reduce bond if appropriate pursuant to article 4 of this title 16 or the decision to commit the defendant to the department pursuant to section 16-8.5-111.       Prior to the dismissal of charges pursuant to subsection (1), (6), (7), (8), or (9) of this section, the court shall identify whether the defendant meets the requirements for certification pursuant to article 65 of title 27, or for the provision of services pursuant to article 10.5 of title 27, or whether the defendant will agree to a voluntary commitment. If the court finds the requirements for certification or provision of services are met or the defendant does not agree to a voluntary commitment, the court may stay the dismissal for twenty-one days and notify the department and county attorney or district attorney required to conduct proceedings pursuant to section 27-65-111 (6) in the relevant jurisdiction of the pending dismissal so as to provide the department and the county attorney or district attorney with the opportunity to pursue certification proceedings or the provision of necessary services.    In any circumstance where the defendant's case was dismissed or the defendant was released from confinement, the court shall enter a written decision explaining why the court did or did not terminate the criminal proceeding or the commitment or restoration order.    If charges against a defendant are dismissed pursuant to this section, such charges are not eligible for sealing pursuant to section 24-72-705.    The department shall promulgate such rules as necessary to consistently enforce the provisions of this article 8.5.    On and after July 1, 2020, the court may, at any time of the restoration process, order the department to provide the court with an appropriate release plan for the reintegration of the defendant into the community with appropriate services.    When the defendant is charged with an offense in municipal court and the defendant is found incompetent to proceed, or when civil commitment proceedings are initiated pursuant to article 65 of title 27, the municipal court shall dismiss the case.    Editor's note: This version of subsection (1) is effective until March 1, 2022.  (1) [ ] Subject to the time periods and legal standards set forth in this section, whichever is shortest, a defendant committed to the custody of the department or otherwise confined as a result of a determination of incompetency to proceed must not remain confined for a period in excess of the maximum term of confinement that could be imposed for only the single most serious offense with which the defendant is charged, less thirty percent for a misdemeanor offense and less fifty percent for a felony offense. At the end of such time period, the court shall dismiss the charges, and certification proceedings or provision of services, if any, are governed by article 65 or 10.5 of title 27.  Editor's note: This version of subsection (1) is effective March 1, 2022.   History. Source: L. 2008: Entire article added, p. 1847, § 2, effective July 1. L. 2010: (2)(c) amended,(SB 10-175), ch. 188, p. 783, § 22, effective April 29. L. 2019: Entire section R&RE,(SB 19-223), ch. 227, p. 2284, § 8, effective July 1. L. 2020: (7)(a)(I) amended and (15) added,(SB 20-181), ch. 144, p. 627, § 3, effective June 29; (12) amended,(HB 20-1402), ch. 216, p. 1046, § 26, effective June 30. L. 2021: (1) amended,(SB 21-271), ch. 462, p. 3163, § 173, effective March 1, 2022.    Editor's note:    This section is similar to former § 16-8-114.5 as it existed prior to 2008.    Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.     Cross references:   For liability for the costs of the care and treatment of persons committed to the department of human services pursuant to this article 8.5, see § 27-92-101 .   ANNOTATION   Annotator's note. Since § 16-8.5-116 is similar to repealed § 16-8-114.5 , as it existed in 1986, a relevant case construing that provision has been included in the annotations to this section.   This section as amended in 1989 gives the district attorney the authority to initiate the termination of criminal proceedings against an incompetent defendant. The statute does not, however, give the district attorney the power to dictate whether the defendant will be released or civilly committed once the trial court determines that there is not a substantial probability that the defendant will be restored to competency in the foreseeable future. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994).   Trial court incorrectly declared this statute to be an unconstitutional violation of due process where it erroneously believed that the defendant has a right to dismissal of criminal charges if it does not appear reasonably likely that he will be competent to stand trial in the future. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994).   The decision to request dismissal of pending criminal charges is within the district attorney's discretion and the decision may not be controlled or limited by judicial intervention. Therefore, transferring the decision to dismiss pending criminal proceedings against incompetent defendants from the trial court to the district attorney is consistent with the traditional powers of the trial court and the prosecutor. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994).   Since under the pre-1989 and post-1989 versions of subsection (2), a court cannot terminate criminal proceedings against an incompetent defendant until a finding of indefinite incompetency is made, and the trial court did not make such a finding until after the statute was amended, application of the amended statute did not violate the ex post facto clauses of the United States constitution or Colorado constitution. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994).