2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 6 - Demurrers, Motions, and Special Pleas and Exceptions
Part 2 - Insanity and Mental Incompetency
§ 17-7-130. Proceedings Upon Plea of Mental Incompetency to Stand Trial

1. As used in this Code section, the term:
   1. "Child" means an accused person under the jurisdiction of the superior court pursuant to Code Section 15-11-560.
   2. "Civil commitment" means the accused's involuntary inpatient or outpatient commitment pursuant to Chapter 3 or 4 of Title 37, as appropriate.
   3. "Court" means the court which has jurisdiction over the criminal charges against the accused.
   4. "Department" means the Department of Behavioral Health and Developmental Disabilities.
   5. "Developmental disability" shall have the same meaning as set forth in paragraph (8) of Code Section 37-1-1.
   6. "Inpatient" shall have the same meaning as in paragraph (9.1) of Code Section 37-3-1; provided, however, that as applied to a child for purposes of this Code section, the term shall mean a child who is mentally ill or has a developmental disability and is in need of involuntary placement.
   7. "Nonviolent offense" means any offense other than a violent offense.
   8. "Outpatient" shall have the same meaning as in paragraph (12.1) of Code Section 37-3-1, provided that:
      1. As applied to a child for purposes of this Code section, the term shall mean a child who is mentally ill or has a developmental disability and is in need of involuntary placement; and
      2. The court determines that the accused meets the criteria for release on bail or other pre-trial release pursuant to Code Section 17-6-1.
   9. "Serious violent felony" shall have the same meaning as set forth in Code Section 17-10-6.1.
   10. "Sexual offense" shall have the same meaning as set forth in Code Section 17-10-6.2.
   11. "Violent offense" means:
       1. 1. A serious violent felony;
          2. A sexual offense;
          3. Criminal attempt to commit a serious violent felony;
          4. Criminal attempt to commit a sexual offense;
          5. Aggravated assault;
          6. Hijacking a motor vehicle in the first degree or hijacking an aircraft;
          7. Aggravated battery;
          8. Aggravated stalking;
          9. Arson in the first degree or in the second degree;
          10. Stalking;
          11. Fleeing and attempting to elude a police officer;
          12. Any offense which involves the use of a deadly weapon or destructive device; and
       2. Those felony offenses deemed by the court to involve an allegation of actual or potential physical harm to another person.
2. 1. If an accused files a motion requesting a competency evaluation, the court may order the department to conduct an evaluation by a physician or licensed psychologist to determine the accused's mental competency to stand trial and, if such physician or licensed psychologist determines the accused to be mentally incompetent to stand trial, to make recommendations as to restoring the accused to competency. If the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department. The department's evaluation shall be submitted to the court, and the court shall submit such evaluation to the attorney for the accused or if pro se, to the accused, but otherwise, the evaluation shall be under seal and shall not be released to any other person absent a court order.
   2. If the accused files a special plea alleging that the accused is mentally incompetent to stand trial, it shall be the duty of the court to have a bench trial, unless the state or the accused demands a special jury trial, to determine the accused's competency to stand trial. Once a special plea has been filed, the court shall submit the department's evaluation to the prosecuting attorney.
3. If the court finds the accused is mentally incompetent to stand trial, the court may order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the accused will attain mental competency to stand trial in the foreseeable future. The court shall retain jurisdiction over the accused and shall transfer the accused to the physical custody of the department. At its discretion, the court may allow the evaluation to be performed on the accused as an outpatient if the accused is charged with a nonviolent offense. Such evaluation shall be performed within 90 days after the department has received actual custody of an accused or, in the case of an outpatient, a court order requiring evaluation of an accused. If the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department. If the evaluation shows:
   1. That the accused is mentally competent to stand trial, the department shall immediately report that determination and the reasons therefor to the court, and the court shall submit such determination to the attorney for the accused or, if pro se, to the accused and to the prosecuting attorney. The accused shall be returned to the court as provided for in subsection (d) of this Code section;
   2. That the accused is mentally incompetent to stand trial and that there is not a substantial probability that the accused will attain competency in the foreseeable future, the court shall follow the procedures set forth in subsection (e) of this Code section for civil commitment or release; or
   3. That the accused is mentally incompetent to stand trial but there is a substantial probability that the accused will attain competency in the foreseeable future, by the end of the 90 day period, or at any prior time, the department shall report that finding and the reasons therefor to the court and shall retain custody over the accused for the purpose of continued treatment for an additional period not to exceed nine months; provided, however, that if the accused is charged with a misdemeanor offense or a nonviolent offense, the court shall retain jurisdiction over the accused but may, in its discretion, allow continued treatment to be done on an outpatient basis by the department. The department shall monitor the accused's outpatient treatment for the additional period not to exceed nine months. If, by the end of the nine-month period or at any prior time the accused's condition warrants, the accused is still determined by the department physician or licensed psychologist to be mentally incompetent to stand trial, irrespective of the probability of recovery in the foreseeable future, the department shall report that finding and the reasons therefor to the court. The court shall then follow the procedures in subsection (e) of this Code section for civil commitment or release.
4. 1. If the department's physician or licensed psychologist determines at any time that the accused is mentally competent to stand trial, the department shall notify the court, and the accused shall be discharged into the custody of a sheriff of the jurisdiction of the court unless the charges which led to the evaluation or civil commitment have been dismissed, in which case, the accused shall be discharged from the department. In the event a sheriff does not appear and take custody of the accused within 20 days after notice to the appropriate sheriff of the jurisdiction of the court, the presiding judge of the court, and the prosecuting attorney for the court, the department shall itself return the accused to one of the court's detention facilities, and the cost of returning the accused shall be paid by the county in which the court is located. All notifications under this paragraph shall be sent by certified mail or statutory overnight delivery, return receipt requested. As an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. Regardless of where the accused is held, the court shall hold a bench trial to determine the accused's mental competency to stand trial within 45 days of receiving the department's evaluation or, if demanded, shall conduct a special jury trial within six months of receiving the department's evaluation.
   2. If the accused is an outpatient and the department's physician or licensed psychologist determines at any time that the accused is mentally competent to stand trial, the accused may remain in the community under conditions of bond or other conditions ordered by the court, if any, until the date of the accused's trial, which shall be within 45 days of the court receiving the department's evaluation if tried by the court or within six months of receiving the department's evaluation if a special jury trial is demanded.
5. If the evaluation performed pursuant to subsection (c) of this Code section shows that the accused is mentally incompetent to stand trial and that there is not a substantial probability that the accused will attain competency in the foreseeable future:
   1. If the accused is charged with a misdemeanor, the department shall return the physical custody of the accused to a sheriff of the jurisdiction of the court; provided, however, that as an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. Regardless of where the accused is held, the court shall, within 45 days of receiving the department's evaluation:
      1. Consider entry of a nolle prosequi of the charges pursuant to Code Section 17-8-3 and, if the accused is not a child, request that the department petition the probate court of the jurisdiction of the accused's residence for civil commitment of the accused; or
      2. If the court finds that the accused does not meet the criteria for civil commitment, the accused shall be released in accordance with the provisions of Chapter 6 of this title; or
   2. If the accused is charged with a felony, the department shall return the physical custody of the accused to a sheriff of the jurisdiction of the court; provided, however, that as an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. The department shall report to the court its finding regarding the accused's mental competency to stand trial, the reasons therefor, and its opinion as to whether the accused currently meets the criteria for civil commitment. The court may order an independent evaluation of the accused by a court appointed licensed clinical psychologist or psychiatrist, who shall report to the court in writing as to the current mental and emotional condition of the accused. Regardless of where the accused is held, the court shall, within 45 days of receiving the department's evaluation:
      1. Consider entry of a nolle prosequi of the charges pursuant to Code Section 17-8-3 and, if the accused is not a child, request that the department petition the probate court of the jurisdiction of the accused's residence for civil commitment of the accused; or
      2. Retain jurisdiction of the accused and conduct a trial at which the court shall hear evidence and consider all psychiatric and psychological evaluations submitted to the court and determine whether the state has proved by clear and convincing evidence that the accused meets the criteria for civil commitment. The burden of proof in such trials shall be upon the state. Following the trial:
         1. If the court finds that the accused does not meet the criteria for civil commitment, the accused shall be released in accordance with the provisions of Chapter 6 of this title;
         2. If the court finds that the accused meets the criteria for civil commitment, the judge may issue an order civilly committing the accused, and the court shall order the civil commitment to be on an inpatient or outpatient placement; provided, however, that if the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department;
         3. If the accused is civilly committed pursuant to division (ii) of this subparagraph and was charged with a nonviolent offense, the court may order civil commitment on an annual basis, but in no case for a period to exceed the maximum period for which the accused could have been sentenced on the most serious nonviolent offense charged or a period to exceed five years, whichever is less, provided that civil commitment shall be reevaluated by a department physician or licensed psychologist on an annual basis;
         4. If the accused is civilly committed pursuant to division (ii) of this subparagraph and was charged with a violent offense, the court may order civil commitment on an annual basis, but in no case for a period to exceed the maximum period for which the accused could have been sentenced on the most serious violent offense charged, provided that civil commitment shall be reevaluated by a department physician or licensed psychologist on an annual basis;
         5. Following the civil commitment pursuant to division (ii) of this subparagraph, a department physician or licensed psychologist shall submit to the court his or her annual evaluation as to whether the civilly committed accused continues to meet the criteria for civil commitment. The court shall mail the annual evaluation to the attorney for the accused or, if pro se, to the accused and to the prosecuting attorney. The court shall review the case annually and enter the appropriate order to renew the civil commitment, to change the civil commitment status, or, in the event the charges are dismissed, to transfer the jurisdiction of the case to the probate court of the jurisdiction of the accused's residence for further civil commitment; provided, however, that after the department submits its annual evaluation, if the state or the accused requests a hearing regarding civil commitment, the court shall hold a hearing on such issue; and
         6. An accused who is civilly committed pursuant to division (ii) of this subparagraph may make an application for release from civil commitment but shall only be released from that civil commitment by order of the court in accordance with the procedures specified in paragraphs (1) through (3) of subsection (f) of Code Section 17-7-131, except that the burden of proof in such release hearing shall be on the state, and if the civilly committed accused is indigent, the accused may petition the court to have an evaluation performed by a physician or licensed psychologist of the accused's choice, and the court may order the cost of such evaluation be paid for by the county.
6. If, at any time, the department's physician or licensed psychologist determines that the accused is mentally incompetent to stand trial but later determines that the accused is mentally competent to stand trial, the court shall be so notified and shall order the accused detained or discharged in accordance with paragraph (1) of subsection (d) of this Code section. Any accused determined by a department physician or licensed psychologist to be mentally competent to stand trial and returned to the court as provided in subsection (d) of this Code section shall again be entitled to file a special plea as provided for in this Code section.
7. If an accused is determined by a department physician or licensed psychologist to be mentally incompetent to stand trial, whether or not civilly committed pursuant to this Code section, the state may file at any time a motion for rehearing on the issue of the accused's mental competency to stand trial. If the state's motion is granted, the case shall proceed as provided in this Code section.
8. Nothing in this Code section shall prevent the accused or the state from seeking a court order for a nondepartment mental competency evaluation of the accused at the cost of the movant. If a nondepartment mental competency evaluation is ordered, the court shall abide by the time frames for trial as set forth in this Code section unless the court determines, for good cause shown, that such time frames require adjustment for a nondepartment evaluation.
9. The "Crime Victims' Bill of Rights," as set forth in Chapter 17 of this title, shall be applicable to any judicial proceeding held pursuant to this Code section, and notice shall be provided to any victim as set forth in such chapter.

(Orig. Code 1863, § 4195; Code 1868, § 4234; Code 1873, § 4299; Code 1882, § 4299; Penal Code 1895, § 951; Penal Code 1910, § 976; Code 1933, § 27-1502; Ga. L. 1977, p. 1293, § 3; Ga. L. 1982, p. 3, § 17; Ga. L. 1995, p. 1250, §§ 1.1, 1.2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2007, p. 663, § 1/SB 190; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2010, p. 286, § 12/SB 244; Ga. L. 2011, p. 372, § 2/HB 421; Ga. L. 2013, p. 294, § 4-16/HB 242; Ga. L. 2017, p. 417, § 3-2/SB 104.)

- Mental capacity as it relates to culpability for criminal acts, § 16-3-2 et seq.

Manner of service of petition for release of person detained in facility pursuant to court order, §§ 37-3-148,37-4-108,37-7-148.

- Pursuant to Code Section 28-9-5, in 2007 and 2008, "or" was deleted at the end of division (a)(3)(A)(ix); "et.seq" was changed to "et seq." in subsection (b) and subparagraph (d)(2)(A); "subparagraph (a)(3)(A)" was substituted for "subparagraph (A) of paragraph (3) of subsection (a)" in the second sentence of subsection (b); and "Chapter 3 or 4 of Title 37" was substituted for "Chapters 3 or 4 of Title 37" near the middle of the introductory language of subsection (d).

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

- Defense of insanity, Federal Rules of Criminal Procedure, Rule 12.2.

- For article, "The Georgia Law of Insanity," see 3 Ga. B.J. 28 (1941). For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004); 58 Mercer L. Rev. 111 (2006). For annual survey of criminal law, see 57 Mercer L. Rev. 139 (2005); 58 Mercer L. Rev. 83 (2006). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 61 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note discussing criminal responsibility and mental illness as a defense in Georgia, see 23 Ga. B.J. 538 (1961). For note, "Commitment and Release of Persons Found Not Guilty by Reason of Insanity: A Georgia Perspective," see 15 Ga. L. Rev. 1065 (1981). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 144 (1995). For note and comment, "Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials," see 23 Ga. St. U.L. Rev. 995 (2007). For comment on Bacon v. State, 222 Ga. 151, 149 S.E.2d 111 (1966), see 18 Mercer L. Rev. 506 (1967).

ANALYSIS

• General Consideration
• Procedure
• Application
• Burden of Proof
• Obligations of Counsel
• Jury Instructions and Responsibilities
• Appeals

OPINIONS OF THE ATTORNEY GENERAL

Instructions to physician regarding insanity of one convicted of a capital felony.

- In view of the fact that the inquiry under former Code 1933, § 27-2602 (see O.C.G.A. § 17-10-61) was directed to the alleged insanity occurring subsequent to the conviction, the definitions of insanity in former Code 1933, §§ 79A-9917 and 79A-9918 (see O.C.G.A. §§ 16-3-2 and16-3-3) were inapplicable and should not be given in written instructions to physicians appointed pursuant to former Code 1933, § 27-2602. Those instructions should inform the physicians that the issue was the present sanity of the individual and should be determined on the basis of whether the individual is capable of presently understanding the nature and object of the proceedings going on against the individual and rightly comprehends the individual's own condition in reference to such proceedings, and was capable of rendering the individual's attorneys such assistance as a proper defense to the proceedings preferred against the individual demands. Since the basic issue is the individual's sanity at a time subsequent to conviction, or, in effect, the individual's present sanity, the appropriate test should be that as employed upon a special plea of insanity under former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130). 1976 Op. Att'y Gen. No. 76-123.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 50 et seq.

40 Am. Jur. 2d, Homicide, § 96 et seq.

42 Am. Jur. 2d, Infants, § 120 et seq.

Defendant's Competency to Stand Trial, 40 POF2d 171.

Adequacy of Quasi-Miranda Warning Prior to Involuntary Civil Commitment, 40 POF2d 733.

Wrongful Confinement to a Mental Health or Developmental Disabilities Facility, 44 POF3d 217.

- Constitutionality of statutes relating to determination of plea of insanity in criminal case, 67 A.L.R. 1451.

Judicial declaration of sanity, made after alleged offense but before acquittal on ground of insanity at time of offense, as affecting duty of court to commit defendant to asylum for insane, 88 A.L.R. 1084.

Admissibility of evidence of reputation on issue of mental condition, or testamentary or contractual incapacity or capacity, 105 A.L.R. 1443.

Investigation of present sanity to determine whether accused should be put, or continue, on trial, 142 A.L.R. 961.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

Counsel's right, in consulting with accused as client, to be accompanied by psychiatrist, psychologist, hypnotist, or similar practitioner, 72 A.L.R.2d 1120.

Release of one committed to institution as consequence of acquittal of crime on ground of insanity, 95 A.L.R.2d 54.

Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency, 16 A.L.R.3d 714.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.

Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884.

Modern status of test of criminal responsibility - state cases, 9 A.L.R.4th 526.

Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial, 15 A.L.R.4th 1043.

Power of court, in absence of statute, to order psychiatric examination of accused for purpose of determining mental condition at time of alleged offense, 17 A.L.R.4th 1274.

Competency to stand trial of criminal defendant diagnosed as "mentally retarded" - modern cases, 23 A.L.R.4th 493.

Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding, 26 A.L.R.4th 995.

Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern state cases, 33 A.L.R.4th 1062.

Pyromania and the criminal law, 51 A.L.R.4th 1243.

Probation revocation: insanity as defense, 56 A.L.R.4th 1178.

"Guilty but mentally ill" statutes: validity and construction, 71 A.L.R.4th 702.

Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.