2021 Colorado Code
Title 18 - Criminal Code
Article 1.3 - Sentencing in Criminal Cases
Part 14 - Competency of Persons to Be Executed
§ 18-1.3-1404. Mental Incompetency to Be Executed - Examination

1. 1. On receipt of a motion filed pursuant to section 18-1.3-1403, the district court shall determine whether the motion is timely, as prescribed by section 18-1.3-1405, and whether it presents reasonable grounds for ordering an examination. Prior to making any determinations, the district court shall ensure that the prosecution has an opportunity to respond to the motion and to submit any additional information for consideration. The district court shall also provide an opportunity for the executive director of the department of corrections, the convicted person's attorney, or an attorney for the state to respond to the motion and to submit additional information for consideration. All responses and additional submissions shall be filed with the court within three days following the filing of the motion. Within seven days following the filing of the motion, the district court shall determine whether there are reasonable grounds for ordering the examination, based on the motion and any supporting information, any information submitted by the prosecuting attorney or any other responding party, and the record in the case, including transcripts of previous hearings and orders.
   2. The district court shall issue a stay of execution upon a showing of reasonable grounds for granting the stay. A stay of execution may be requested only by the convicted person's attorney, the executive director of the department of corrections, or an attorney for the state.

2. 1. If the court finds there are no reasonable grounds for the requested examination, the court shall dismiss the motion. If the court finds the motion is timely and there are reasonable grounds for ordering an examination, the court may order the convicted person to submit to physical, neurological, psychiatric, psychological, or other examinations or evaluations that are reasonably necessary to adequately determine whether the convicted person is mentally incompetent to be executed.
   2. The Colorado mental health institute shall create and maintain a list of licensed, qualified psychiatrists and psychologists who shall be available to perform the examinations required pursuant to this part 14.
   3. If the court determines an examination is necessary, the court shall appoint one or more licensed psychiatrists to observe and examine the convicted person. In making such appointment, the court may select one or more licensed psychiatrists from the list prepared by the Colorado mental health institute pursuant to paragraph (b) of this subsection (2) or appoint another qualified, licensed psychiatrist. If requested in the motion for competency examination or by motion of the executive director of the department of corrections, the prosecution, or the attorney for the convicted person or by request of the appointed psychiatrist, and for good cause shown, the court may order further examinations, including the services of licensed psychologists, licensed physicians, or psychiatrists. All examinations shall be completed and reports filed with the court within thirty-five days following the court's initial appointment of experts.

3. 1. Any examination ordered pursuant to this section shall be conducted at a department of corrections facility.
   2. At the time of appointment of experts, the parties shall disclose to the appointed experts and to each other the names and addresses of any other previously undisclosed mental health experts who have examined the convicted person and the results of the examinations, as well as any and all records of any other previously undisclosed mental health examinations, treatment, or reports that are not privileged. If the party has any question regarding whether any such records are privileged, the records shall be submitted to the court ex parte and the court shall make a determination as to release of the record. The appointed experts shall make copies of their reports available to all of the parties at the time of filing the reports with the court. The experts' reports shall indicate whether the convicted person has a mental disease or defect which renders the convicted person mentally incompetent to be executed.

4. The convicted person shall submit to and cooperate in all examinations or evaluations ordered by the court, regardless of which party selects the examining mental health expert. The district court shall consider any relevant evidence concerning the issue of the convicted person's competency to be executed, including but not limited to the convicted person's refusal to be examined or evaluated.
5. 1. After the examinations are completed and reports are filed, the court shall conduct a hearing within seven days following the court's receipt of all reports from appointed experts. The hearing shall be limited to the sole issue of whether the convicted person is mentally incompetent to be executed. At the hearing, all parties may present evidence, cross-examine witnesses, and present argument or, by stipulation, may submit the matter for the court's determination on the basis of the experts' reports or other evidence.
   2. The Colorado rules of evidence shall apply to each hearing held pursuant to this section. The transcript of the hearing shall be forwarded to the Colorado supreme court within three days following the conclusion of the hearing.

6. 1. Within three days following the conclusion of the hearing held pursuant to subsection (5) of this section, the district court, either on the record or by written ruling, shall specifically state its findings on the motion raising the issue of whether the convicted person is mentally incompetent to be executed. If the ruling is in written form, it shall be transmitted by facsimile or electronic mail to all parties and the Colorado supreme court on the same day of its issuance.
   2. If the court finds the convicted person is not mentally incompetent to be executed, the court shall immediately remand the convicted person to the custody of the executive director of the department of corrections who shall execute the judgment as specified in the warrant issued pursuant to section 18-1.3-1205. If the week specified in the warrant has passed, the district court shall issue a new warrant designating a week of time within which the sentence shall be executed.
   3. If the court finds the convicted person is mentally incompetent to be executed, the court shall stay the execution and shall immediately transmit a copy of its order to the Colorado supreme court.

7. The time frames specified in this section shall apply only if the motion filed pursuant to section 18-1.3-1403 is filed within one hundred nineteen days prior to the convicted person's execution date. In all other cases, the court shall establish time frames for filing of responses and additional submissions and for completion of the examinations and shall hear and rule on the motion as expeditiously as possible.

History. Source: L. 2002: Entire article added with relocations, p. 1460, § 2, effective October 1. L. 2012: (1)(a), (2)(c), (5)(a), and (7) amended,(SB 12-175), ch. 208, p. 869, § 123, effective July 1.

This section is similar to former § 16-8-304 as it existed prior to 2002.