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Subject 290-4-3 PRETRIAL EXAMINATION AND FOR COMMITMENT BECAUSE OF INCOMPETENCY TO STAND TRIAL- AMENDED

Rule 290-4-3-.01 Duration of Detention for Pretrial Examination

When any individual who has criminal charges presently pending against him, is sent to any institution under the jurisdiction of the Department of Human Resources for the purpose of having such person evaluated to determine whether such person is competent to stand trial, the institution to which that person is brought shall make a report to the committing court as to the person's competency to stand trial at the institution's earliest opportunity, but in any event such report shall be made to the court not more than 45 days after the institution has received physical custody of the person. Discharge of such person shall be pursuant to the provisions of Rule 290-4-3-.02(6).

Rule 290-4-3-.02 Disposition of Persons Committed Pursuant to Georgia Code Section 27-1502

(1) Whenever a person is committed, pursuant to the provisions of Georgia Code Section 27-1502 following an adjudication of incompetency to stand trial, to any State institution which is subject to the jurisdiction of the Department of Human Resources, within ninety (90) days after the institution has received actual custody of such person, he or she shall be evaluated and a diagnosis made as to whether the person is presently incompetent and if so, whether there is a substantial probability that the person will attain competency in the foreseeable future. If the person is found to be competent to stand trial, the institution shall immediately report that finding and the reasons therefor to the trial court and the person shall be discharged pursuant to paragraph (6) of this rule.
(2) If the person is found to be incompetent to stand trial and there is not a substantial probability that the person will attain competency in the foreseeable future, the institution shall report that finding and the reasons therefor to the trial court and such person, provided that he or she meets the criteria for civil commitment, shall thereupon be civilly committed to a State institution pursuant to the provisions of Georgia Code Sections 88-5 or 88-25, whichever is applicable. If such person does not meet the criteria for civil commitment, he or she shall be discharged.
(3) If the person is found to be incompetent to stand trial but there is a substantial probability that such person will attain competency in the foreseeable future, by the end of said ninety (90) day period, or at any prior time, the institution shall report that finding and the reasons therefor to the trial court and shall retain custody over the individual for the purpose of continued treatment for an additional period not to exceed nine (9) months.
(4) If, by the end of said nine (9) month period, or at any prior time if the person's condition warrants, the person is still found not to be competent to stand trial, irrespective of the probability of recovery in the foreseeable future, the institution shall report that finding and the reasons therefor to the trial court and such person, provided that he or she meets the criteria for civil commitment, shall thereupon be civilly committed to a State institution pursuant to the provisions of Georgia Code Sections 88-5 or 88-25, whichever is applicable. If such person does not meet the criteria for civil commitment he or she shall be discharged.
(5) Even if it is found that the person probably soon will be able to stand trial, his continued confinement must be accompanied by progress toward that goal. If the institution finds at any time during said nine (9) month period that the person is not progressing toward competency, the institution shall report that finding and the reasons therefor to the trial court and such person, provided that he or she meets the criteria for civil commitment, shall thereupon be civilly committed to a State institution pursuant to the provisions of Georgia Code Sections 88-5 or 88-25 whichever is applicable. If such person does not meet the criteria for civil commitment, he or she shall be discharged.
(6) In no event shall any person confined pursuant to a court order entered in a pending criminal prosecution be discharged other than into the custody of a law enforcement officer of the jurisdiction of the court committing such person to the institution, unless the court has dismissed the charges which led to the commitment; provided that in the event that such law enforcement officer refuses to appear and take custody of the person within twenty (20) days after notice to such officer, to the presiding judge of the committing court, and to the prosecuting attorney for such court, the person shall be discharged and the committing court so notified. All notifications shall be sent by certified mail, return receipt requested. Provided, that, with the concurrence of the appropriate court, and upon the recommendation of the attending physician, any person discharged as competent to stand trial, may be held at the confining institution instead of at the court's detention facilities, whenever, in the attending physicians' opinion, such detention in the court's facilities would be detrimental to the well-being of the person so committed. Such detention shall continue only until the date of the person's trial.