2006 Code of Virginia § 19.2-169.3 - Disposition of the unrestorably incompetent defendant; capital murder charge; referral to Commitmen...

19.2-169.3. Disposition of the unrestorably incompetent defendant; capitalmurder charge; referral to Commitment Review Committee.

A. If, at any time after the defendant is ordered to undergo treatmentpursuant to subsection A of 19.2-169.2, the director of the treatingfacility concludes that the defendant is likely to remain incompetent for theforeseeable future, he shall send a report to the court so stating. Thereport shall also indicate whether, in the director's opinion, the defendantshould be released, committed pursuant to Article 5 ( 37.2-814 et seq.) ofChapter 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 foundto be unrestorably incompetent. Upon receipt of the report, the court shallmake a competency determination according to the procedures specified insubsection E of 19.2-169.1. If the court finds that the defendant isincompetent and is likely to remain so for the foreseeable future, it shallorder that he be (i) released, (ii) committed pursuant to Article 5 (37.2-814 et seq.) of Chapter 8 of Title 37.2, (iii) reviewed for commitmentpursuant to Chapter 9 ( 37.2-900 et seq.) of Title 37.2, or (iv) certifiedpursuant to 37.2-806. If the court finds the defendant incompetent butrestorable to competency in the foreseeable future, it may order treatmentcontinued until six months have elapsed from the date of the defendant'sinitial admission under subsection A of 19.2-169.2.

B. At the end of six months from the date of the defendant's initialadmission under subsection A of 19.2-169.2 if the defendant remainsincompetent in the opinion of the director, the director shall so notify thecourt and make recommendations concerning disposition of the defendant asdescribed above. The court shall hold a hearing according to the proceduresspecified in subsection E of 19.2-169.1 and, if it finds the defendantunrestorably incompetent, shall order one of the dispositions describedabove. If the court finds the defendant incompetent but restorable tocompetency, it may order continued treatment under subsection A of 19.2-169.2 for additional six-month periods, provided a hearing pursuant tosubsection E of 19.2-169.1 is held at the completion of each such periodand the defendant continues to be incompetent but restorable to competency inthe foreseeable future.

C. Unless an incompetent defendant is charged with capital murder or thecharges against an incompetent criminal defendant have been previouslydismissed, charges against an unrestorably incompetent defendant shall bedismissed on the date upon which his sentence would have expired had he beenconvicted and received the maximum sentence for the crime charged, or on thedate five years from the date of his arrest for such charges, whichever issooner.

D. If the court orders an unrestorably incompetent defendant to be reviewedfor commitment pursuant to 37.2-904, it shall order the attorney for theCommonwealth in the jurisdiction wherein the defendant was charged and theCommissioner of the Department of Mental Health, Mental Retardation andSubstance Abuse Services to provide the Commitment Review Committeeestablished pursuant to 37.2-902 with any information relevant to thereview, including, but not limited to: (i) a copy of the warrant orindictment, (ii) a copy of the defendant's criminal record, (iii) informationabout the alleged crime, (iv) a copy of the competency report completedpursuant to 19.2-169.1, and (v) a copy of the report prepared by thedirector of the defendant's treating facility pursuant to this section. Thecourt shall further order that the defendant be held in the custody of theDepartment of Mental Health, Mental Retardation and Substance Abuse Servicesfor secure confinement and treatment until the Commitment Review Committee'sand Attorney General's review and any subsequent hearing or trial arecompleted. If the court receives notice that the Attorney General hasdeclined to file a petition for the commitment of an unrestorably incompetentdefendant as a sexually violent predator after conducting a review pursuantto 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 Title37.2, or certified pursuant to 37.2-806.

E. In any case when an incompetent defendant is charged with capital murder,notwithstanding any other provision of this section, the charge shall not bedismissed and the court having jurisdiction over the capital murder case mayorder 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 thecompletion of each such period, (ii) the defendant remains incompetent, (iii)the court finds continued treatment to be medically appropriate, and (iv) thedefendant presents a danger to himself or others.

F. The attorney for the Commonwealth may bring charges that have beendismissed against the defendant when he is restored to competency.

(1982, c. 653; 1999, cc. 946, 985; 2003, cc. 915, 919, 989, cls. 4, 5, 1018,cls. 4, 5, 1042, cls. 10, 11; 2006, cc. 863, 914.)