2005 West Virginia Code - §27-6A-2. — Hearing on competency to stand trial; findings.

§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 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 defendant's competency to stand trial based on whether or not the defendant is capable of participating substantially in his or her defense and understanding the nature and consequences of a criminal trial. If the defendant is found competent, the court of record shall forthwith proceed with the criminal proceedings. If the 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 defendant will attain competency within the next ensuing six months, and if the court of record so finds, the 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 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 defendant has attained competency to stand trial.
(c) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does not involve an act of 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 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 defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person and upon hearing: (1) The defendant is found initially to be incompetent to stand trial with no substantial likelihood of obtaining competency and is found not to be a danger to self or others; or (2) after an improvement period pursuant to subsection (b) of this section, the defendant is found to be incompetent to stand trial and is found not to be a danger to self or others, then the court shall maintain jurisdiction over the defendant.
(e) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person and, upon hearing: (1) The defendant is found initially to be incompetent to stand trial with no substantial likelihood of obtaining competency and is found to be a danger to self or others; or (2) after an improvement period pursuant to subsection (b) of this section, the defendant is found to be incompetent to stand trial and is found to be a danger to self or others, then 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 or psychologist 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.
(f) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of 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. When a defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment, the court in its discretion, may make the continuance of the medication or other mode of treatment a condition of the defendant's release. Upon notice that a defendant who is released on the condition that he or she continues medication or other mode of treatment does not continue his medication or other mode of treatment, the prosecuting attorney shall, by motion, cause the court to reconsider the defendant's release. Upon a showing that defendant is in violation of the conditions of his or her release, the court shall recommit the defendant to the mental health facility.
(g) The prosecuting attorney shall, by motion, cause the competency to stand trial of a defendant subject to the court's jurisdiction pursuant to subsection (d) of this section or released pursuant to subsection (f) 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) or (e) 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.