SENATORS Oelslager, Espy

To amend sections 2945.371 and 2945.39, to revive and

1

amend section 2945.38, and to repeal section

2

2945.38 of the Revised Code as it results from Am.

3

Sub. S.B. 285 of the 121st General Assembly

4

relative to the determination of a defendant's

5

competency to stand trial and whether or not there

6

is a substantial probability that the defendant

7

will become competent to stand trial if provided

8

with a course of treatment.

9

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2945.371, 2945.38, and 2945.39 of	10
the Revised Code be amended to read as follows:	11

Sec. 2945.371.  (A) If the issue of a defendant's competence	12
to stand trial is raised or if a defendant enters a plea of not	13
guilty by reason of insanity, the court may order one or more	14
evaluations of the defendant's present mental condition or, in the	15
case of a plea of not guilty by reason of insanity, of the	16
defendant's mental condition at the time of the offense charged.	17
An examiner shall conduct the evaluation.	18

(B) If the court orders more than one evaluation under	19
division (A) of this section, the prosecutor and the defendant may	20
recommend to the court an examiner whom each prefers to perform	21
one of the evaluations. If a defendant enters a plea of not	22
guilty by reason of insanity and if the court does not designate	23
an examiner recommended by the defendant, the court shall inform	24
the defendant that the defendant may have independent expert	25
evaluation and that, if the defendant is unable to obtain	26
independent expert evaluation, it will be obtained for the	27
defendant at public expense if the defendant is indigent.	28

(C) If the court orders an evaluation under division (A) of	29
this section, the defendant shall be available at the times and	30
places established by the examiners who are to conduct the	31
evaluation. The court may order a defendant who has been released	32
on bail or recognizance to submit to an evaluation under this	33
section. If a defendant who has been released on bail or	34
recognizance refuses to submit to a complete evaluation, the court	35
may amend the conditions of bail or recognizance and order the	36
sheriff to take the defendant into custody and deliver the	37
defendant to a center, program, or facility operated or certified	38
by the department of mental health or the department of mental	39
retardation and developmental disabilities where the defendant may	40
be held for evaluation for a reasonable period of time not to	41
exceed twenty days.	42

(D) A defendant who has not been released on bail or	43
recognizance may be evaluated at the defendant's place of	44
detention. Upon the request of the examiner, the court may order	45
the sheriff to transport the defendant to a program or facility	46
operated by the department of mental health or the department of	47
mental retardation and developmental disabilities, where the	48
defendant may be held for evaluation for a reasonable period of	49
time not to exceed twenty days, and to return the defendant to the	50
place of detention after the evaluation. A municipal court may	51
make an order under this division only upon the request of a	52
certified forensic center examiner.	53

(E) If a court orders the evaluation to determine a	54
defendant's mental condition at the time of the offense charged,	55
the court shall inform the examiner of the offense with which the	56
defendant is charged.	57

(F) In conducting an evaluation of a defendant's mental	58
condition at the time of the offense charged, the examiner shall	59
consider all relevant evidence. If the offense charged involves	60
the use of force against another person, the relevant evidence to	61
be considered includes, but is not limited to, any evidence that	62
the defendant suffered, at the time of the commission of the	63
offense, from the "battered woman syndrome."	64

(G) The examiner shall file a written report with the court	65
within thirty days after entry of a court order for evaluation,	66
and the court shall provide copies of the report to the prosecutor	67
and defense counsel. The report shall include all of the	68
following:	69

(1) The examiner's findings;

70

(2) The facts in reasonable detail on which the findings are	71
based;	72

(3) If the evaluation was ordered to determine the	73
defendant's competence to stand trial, all of the following	74
findings or recommendations that are applicable:	75

(a) Whether the defendant is capable of understanding the	76
nature and objective of the proceedings against the defendant or	77
of assisting in the defendant's defense;	78

(b) If the examiner's opinion is that the defendant is	79
incapable of understanding the nature and objective of the	80
proceedings against the defendant or of assisting in the	81
defendant's defense, whether the defendant presently is mentally	82
ill or mentally retarded and, if the examiner's opinion is that	83
the defendant presently is mentally retarded, whether the	84
defendant appears to be a mentally retarded person subject to	85
institutionalization by court order;	86

(c) If the examiner's opinion is that the defendant is	87
incapable of understanding the nature and objective of the	88
proceedings against the defendant or of assisting in the	89
defendant's defense, the examiner's opinion as to the likelihood	90
of the defendant becoming capable of understanding the nature and	91
objective of the proceedings against the defendant and of	92
assisting in the defendant's defense within one year if the	93
defendant is provided with a course of treatment;	94

(d) If the examiner's opinion is that the defendant is	95
incapable of understanding the nature and objective of the	96
proceedings against the defendant or of assisting in the	97
defendant's defense and that the defendant presently is mentally	98
ill or mentally retarded, the examiner's recommendation as to the	99
least restrictive treatment alternative, consistent with the	100
defendant's treatment needs for restoration to competency and with	101
the safety of the community;.	102

(4) If the evaluation was ordered to determine the	103
defendant's mental condition at the time of the offense charged,	104
the examiner's findings as to whether the defendant, at the time	105
of the offense charged, did not know, as a result of a severe	106
mental disease or defect, the wrongfulness of the defendant's acts	107
charged.	108

(H) If the examiner's report filed under division (G) of	109
this section indicates that in the examiner's opinion the	110
defendant is incapable of understanding the nature and objective	111
of the proceedings against the defendant or of assisting in the	112
defendant's defense and that in the examiner's opinion the	113
defendant appears to be a mentally retarded person subject to	114
institutionalization by court order, the court shall order the	115
defendant to undergo a separate mental retardation evaluation	116
conducted by a psychologist designated by the director of mental	117
retardation and developmental disabilities. Divisions (C) to (F)	118
of this section apply in relation to a separate mental retardation	119
evaluation conducted under this division. The psychologist	120
appointed under this division to conduct the separate mental	121
retardation evaluation shall file a written report with the court	122
within thirty days after the entry of the court order requiring	123
the separate mental retardation evaluation, and the court shall	124
provide copies of the report to the prosecutor and defense	125
counsel. The report shall include all of the information	126
described in divisions (G)(1) to (4) of this section. If the	127
court orders a separate mental retardation evaluation of a	128
defendant under this division, the court shall not conduct a	129
hearing under divisions (B) to (H) of section 2945.37 of the	130
Revised Code regarding that defendant until a report of the	131
separate mental retardation evaluation conducted under this	132
division has been filed. Upon the filing of that report, the	133
court shall conduct the hearing within the period of time	134
specified in division (C) of section 2945.37 of the Revised Code.	135

(I) An examiner appointed under divisions (A) and (B) of	136
this section or under division (H) of this section to evaluate a	137
defendant to determine the defendant's competence to stand trial	138
also may be appointed to evaluate a defendant who has entered a	139
plea of not guilty by reason of insanity, but an examiner of that	140
nature shall prepare separate reports on the issue of competence	141
to stand trial and the defense of not guilty by reason of	142
insanity.	143

(J) No statement that a defendant makes in an evaluation or	144
hearing under divisions (A) to (H) of this section relating to the	145
defendant's competence to stand trial or to the defendant's mental	146
condition at the time of the offense charged shall be used against	147
the defendant on the issue of guilt in any criminal action or	148
proceeding, but, in a criminal action or proceeding, the	149
prosecutor or defense counsel may call as a witness any person who	150
evaluated the defendant or prepared a report pursuant to a	151
referral under this section. Neither the appointment nor the	152
testimony of an examiner appointed under this section precludes	153
the prosecutor or defense counsel from calling other witnesses or	154
presenting other evidence on competency or insanity issues.	155

(K) Persons appointed as examiners under divisions (A) and	156
(B) of this section or under division (H) of this section shall be	157
paid a reasonable amount for their services and expenses, as	158
certified by the court. The certified amount shall be paid by the	159
county in the case of county courts and courts of common pleas and	160
by the legislative authority, as defined in section 1901.03 of the	161
Revised Code, in the case of municipal courts.	162

Sec. 2945.38.  (A) If the issue of a defendant's competence	163
to stand trial is raised and if the court finds, upon conducting	164
the hearing provided for in section 2945.37 of the Revised Code,	165
finds that the defendant is competent to stand trial, the	166
defendant shall be proceeded against as provided by law. If the	167
court finds the defendant is found competent to stand trial and	168
the defendant is receiving psychotropic drugs or other medication,	169
the court shallmay authorize the continued administration of the	170
drugs or medication or other appropriate treatment in order to	171
maintain the defendant's competence to stand trial, unless the	172
defendant's attending physician advises the court against	173
continuation of the drugs, other medication, or treatment.	174

(B)(1)(a) If, after taking into consideration all relevant	175
reports, information, and other evidence, the court finds that the	176
defendant is incompetent to stand trial, it shall also make a	177
finding based on the evidence as to whetherand that there is a	178
substantial probability that the defendant will become competent	179
to stand trial within one year, if the defendant is provided with	180
a course of treatment, the court shall order the defendant to	181
undergo treatment. If the defendant has been charged with a felony	182
offense and if, after taking into consideration all relevant	183
reports, information, and other evidence, the court finds that the	184
defendant is incompetent to stand trial, but the court is unable	185
at that time to determine whether there is a substantial	186
probability that the defendant will become competent to stand	187
trial within one year if the defendant is provided with a course	188
of treatment, the court shall order continuing evaluation and	189
treatment of the defendant for a period not to exceed four months	190
to determine whether there is a substantial probability that the	191
defendant will become competent to stand trial within one year if	192
the defendant is provided with a course of treatment.	193

(b) The court order for the defendant to undergo treatment	194
or continuing evaluation and treatment under division (B)(1)(a) of	195
this section shall specify that the treatment or continuing	196
evaluation and treatment shall occur at a facility operated by the	197
department of mental health or the department of mental	198
retardation and developmental disabilities, at a facility	199
certified by either of those departments as being qualified to	200
treat mental illness or mental retardation, at a public or private	201
community mental health or mental retardation facility, or by a	202
psychiatrist or another mental health or mental retardation	203
professional. The order may restrict the defendant's freedom of	204
movement as the court considers necessary. The prosecutor in the	205
defendant's case shall send to the chief clinical officer of the	206
hospital or facility, the managing officer of the institution, the	207
director of the program, or the person to which the defendant is	208
committed copies of relevant police reports and other background	209
information that pertains to the defendant and is available to the	210
prosecutor unless the prosecutor determines that the release of	211
any of the information in the police reports or any of the other	212
background information to unauthorized persons would interfere	213
with the effective prosecution of any person or would create a	214
substantial risk of harm to any person.	215

In determining placement alternatives, the court shall	216
consider the extent to which the person is a danger to the person	217
and to others, the need for security, and the type of crime	218
involved and shall order the least restrictive alternative	219
available that is consistent with public safety and treatment	220
goals. In weighing these factors, the court shall give preference	221
to protecting public safety.	222

(c) If the defendant is found incompetent to stand trial,	223
if the chief clinical officer of the hospital or facility, the	224
managing officer of the institution, the director of the program,	225
or the person to which the defendant is committed for treatment or	226
continuing evaluation and treatment under division (B)(1)(b) of	227
this section determines that medication is necessary to restore	228
the defendant's competency to stand trial, and if the defendant	229
lacks the capacity to give informed consent or refuses medication,	230
the chief clinical officer, managing officer, director, or person	231
to which the defendant is committed for treatment or continuing	232
evaluation and treatment may petition the court for authorization	233
for the involuntary administration of medication. The court shall	234
hold a hearing on the petition within five days of the filing of	235
the petition if the petition was filed in a municipal court or a	236
county court regarding an incompetent defendant charged with a	237
misdemeanor or within ten days of the filing of the petition if	238
the petition was filed in a court of common pleas regarding an	239
incompetent defendant charged with a felony offense. Following	240
the hearing, the court may authorize the involuntary	241
administration of medication or may dismiss the petition.	242

(C)(2) If the court finds that the defendant is incompetent	243
to stand trial and that, even if the defendant is provided with a	244
course of treatment, there is not a substantial probability that	245
the defendant will become competent to stand trial within one	246
year, and it appears to the court, through a review of the report	247
of an examiner under section 2945.371 of the Revised Code or	248
otherwise, that the defendant is mentally ill or mentally retarded	249
shall order the discharge of the defendant, unless upon motion of	250
the prosecutor or on its own motion, the court may causeeither	251
seeks to retain jurisdiction over the defendant pursuant to	252
section 2945.39 of the Revised Code or files an affidavit to be	253
filed in the probate court under section 5122.11 or 5123.71for	254
the civil commitment of the defendant pursuant to Chapter 5122. or	255
5123. of the Revised Code alleging that the defendant is a	256
mentally ill person subject to hospitalization by court order or a	257
mentally retarded person subject to institutionalization by court	258
order, as defined in sections 5122.01 and 5123.01 of the Revised	259
Code. When theIf an affidavit is filed in the probate court, the	260
trial court shall send to the probate court a copycopies of all	261
written reports of the defendant's mental condition that were	262
prepared pursuant to section 2945.371 of the Revised Code.	263

The trial court may issue the temporary order of detention	264
that a probate court may issue under section 5122.11 or 5123.71 of	265
the Revised Code, to remain in effect until the probable cause or	266
initial hearing in the probate court. Further proceedings in the	267
probate court are then civil proceedings governed by Chapter 5122.	268
or 5123. of the Revised Code.	269

The chief clinical officer of the hospital or facility, the	270
managing officer of the institution, the director of the program,	271
or the person to which the defendant is committed or admitted	272
shall send, at least ten days prior to the discharge or	273
immediately upon learning of a change to voluntary status, written	274
notice to the prosecutor of the date on which the defendant will	275
be discharged or has been admitted on voluntary status.	276

(D) If the court finds that the defendant is incompetent to	277
stand trial and it appears to the court, through a review of the	278
report of an examiner or otherwise, that the defendant is mentally	279
ill or mentally retarded, but that there is a substantial	280
probability the defendant will become competent to stand trial	281
within one year if provided a course of treatment, and the offense	282
is one for which the defendant could be incarcerated, if	283
convicted, the court shall order the defendant to undergo	284
treatment at a facility operated by the department of mental	285
health or the department of mental retardation and developmental	286
disabilities, at a facility certified by the appropriate	287
department as qualified to treat mental illness or mental	288
retardation, or at a public or private community mental health or	289
mental retardation facility, or it may order private treatment by	290
a psychiatrist or other mental health or mental retardation	291
professional. The order may restrict the defendant's freedom of	292
movement, as the court considers necessary. In determining	293
placement alternatives, the court shall consider the dangerousness	294
of the defendant to self and others, the need for security, and	295
the type of crime involved and shall order the least restrictive	296
alternative available that is consistent with public safety and	297
treatment goals.	298

(C) No defendant shall be required to undergo treatment,	299
including any continuing evaluation and treatment, under this	300
division (B)(1) of this section for longer than the lesser of	301
fifteen months or one-third of the longest prison term that might	302
whichever of the following periods is applicable:	303

(1) One year, if the most serious offense with which the	304
defendant is charged is one of the following offenses:	305

(a) Aggravated murder, murder, or an offense of violence	306
for which a sentence of death or life imprisonment may be imposed	307
for conviction of;	308

(b) An offense of violence that is a felony or one-third of	309
the longest term of imprisonment that might be imposed for	310
conviction ofof the first or second degree;	311

(c) A conspiracy to commit, an attempt to commit, or	312
complicity in the commission of an offense described in division	313
(C)(1)(a) or (b) of this section if the conspiracy, attempt, or	314
complicity is a felony of the first or second degree.	315

(2) Six months, if the most serious offense with which the	316
defendant is charged is a felony other than a felony described in	317
division (C)(1) of this section;	318

(3) Sixty days, if the most serious offense with which the	319
defendant is charged is a misdemeanor if the defendant is found	320
guilty of the most serious crime with which the defendant was	321
charged at the time of the hearing. No order issued under this	322
division shall remain in effect after the indictment, information,	323
or complaint is dismissed. The court shall notify the prosecutor,	324
defense counsel, and the chief clinical officer of the facility or	325
the managing officer of the institution or facility at which, or	326
person with whom, the defendant was ordered to undergo treatment	327
pursuant to this division whenever an indictment, information, or	328
complaint against a defendant is dismissed and whenever the court	329
revokes an order made under this division. If the maximum time	330
during which an order of the court may be in effect expires, the	331
court, within three days, shall conduct another hearing under	332
section 2945.37 of the Revised Code to determine if the defendant	333
is competent to stand trial, but at the close of such a hearing, a	334
disposition shall be made under division (A) of this section or if	335
the defendant is found incompetent to stand trial, disposition	336
shall be made as under division (C) of this sectionof the first	337
or second degree;	338

(4) Thirty days, if the most serious offense with which the	339
defendant is charged is a misdemeanor of the third or fourth	340
degree, a minor misdemeanor, or an unclassified misdemeanor.	341

(D) Any defendant who is committed pursuant to this division	342
section shall not voluntarily admit selfthe defendant or be	343
voluntarily admitted to a hospital or institution pursuant to	344
section 5122.02 of the Revised Code or to an institution pursuant	345
to section, 5122.15, 5123.69, or 5123.76 of the Revised Code.	346

(E) Except as otherwise provided in this division, a	347
defendant who is charged with an offense and is committed to a	348
hospital or other institution by the court under this section	349
shall not be granted unsupervised on-grounds movement, supervised	350
off-grounds movement, or nonsecured status. The court may grant a	351
defendant supervised off-grounds movement to obtain medical	352
treatment or specialized habilitation treatment services if the	353
person who supervises the treatment or the continuing evaluation	354
and treatment of the defendant ordered under division (B)(1)(a) of	355
this section informs the court that the treatment or continuing	356
evaluation and treatment cannot be provided at the hospital or the	357
institution to which the defendant is committed. The chief	358
clinical officer of the hospital or the managing officer of the	359
institution to which the defendant is committed or a designee of	360
either of those persons may grant a defendant movement to a	361
medical facility for an emergency medical situation with	362
appropriate supervision to ensure the safety of the defendant,	363
staff, and community during that emergency medical situation. The	364
chief clinical officer of the hospital or the managing officer of	365
the institution shall notify the court within twenty-four hours of	366
the defendant's movement to the medical facility for an emergency	367
medical situation under this division.	368

(F) The person who supervises the treatment or continuing	369
evaluation and treatment of a defendant ordered to undergo	370
treatment or continuing evaluation and treatment under division	371
(D)(B)(1)(a) of this section shall file a written report with the	372
court and send copies to the prosecutor and defense counsel at the	373
following times:	374

(1) After the first ninety days of treatment and after each	375
one hundred eighty days of treatment thereafter;	376

(2) Whenever the person believes the defendant is competent	377
to stand trial;	378

(3) Whenever the person believes that there is not a	379
substantial probability that the defendant will become competent	380
to stand trial;	381

(4) Fourteencapable of understanding the nature and	382
objective of the proceedings against the defendant and of	383
assisting in the defendant's defense;	384

(2) For a felony offense, fourteen days before expiration	385
of the maximum time an order issued underfor treatment as	386
specified in division (D)(C) of this section may be in effectand	387
fourteen days before the expiration of the maximum time for	388
continuing evaluation and treatment as specified in division	389
(B)(1)(a) of this section, and, for a misdemeanor offense, ten	390
days before the expiration of the maximum time for treatment, as	391
specified in that division.(C) of this section;	392

(3) At a minimum, after each six months of treatment;

393

(4) Whenever the person who supervises the treatment or	394
continuing evaluation and treatment of a defendant ordered under	395
division (B)(1)(a) of this section believes that there is not a	396
substantial probability that the defendant will become capable of	397
understanding the nature and objective of the proceedings against	398
the defendant or of assisting in the defendant's defense even if	399
the defendant is provided with a course of treatment.	400

(G) A report under division (F) of this section shall	401
contain the examiner's findings of the examiner, the facts in	402
reasonable detail on which the findings are based, and the	403
examiner's opinion of the examiner as to the defendant's	404
competence to stand trialcapability of understanding the nature	405
and objective of the proceedings against the defendant and of	406
assisting in the defendant's defense. If, in the examiner finds	407
that the defendant is incompetent to stand trial, the examiner	408
shall state an opinion in the report on the likelihood of the	409
defendant's becoming competent to stand trial within one year	410
examiner's opinion, the defendant remains incapable of	411
understanding the nature and objective of the proceedings against	412
the defendant and of assisting in the defendant's defense and	413
there is a substantial probability that the defendant will become	414
capable of understanding the nature and objective of the	415
proceedings against the defendant and of assisting in the	416
defendant's defense if the defendant is provided with a course of	417
treatment, if in the examiner's opinion the defendant remains	418
mentally ill or mentally retarded, and if the maximum time for	419
treatment as specified in division (C) of this section has not	420
expired, the report also shall contain the examiner's	421
recommendation as to the least restrictive treatment alternative	422
that is consistent with the defendant's treatment needs for	423
restoration to competency and with the safety of the community.	424
The court shall provide copies of the report to the prosecutor and	425
defense counsel.	426

(F) Within(H) If a defendant is committed pursuant to	427
division (B)(1) of this section, within ten days after receipt of	428
a report required by division (E) of this sectionthe treating	429
physician of the defendant or the examiner of the defendant who is	430
employed or retained by the treating facility advises that there	431
is not a substantial probability that the defendant will become	432
capable of understanding the nature and objective of the	433
proceedings against the defendant or of assisting in the	434
defendant's defense even if the defendant is provided with a	435
course of treatment, within ten days after the expiration of the	436
maximum time for treatment as specified in division (C) of this	437
section, within ten days after the expiration of the maximum time	438
for continuing evaluation and treatment as specified in division	439
(B)(1)(a) of this section, within thirty days after a defendant's	440
request for a hearing that is made after six months of treatment,	441
or within thirty days after being advised by the treating	442
physician or examiner that the defendant is competent to stand	443
trial, whichever is the earliest, the court shall hold aconduct	444
another hearing on the issue of the competence ofto determine if	445
the defendant is competent to stand trial, as provided in section	446
2945.37 of the Revised Code.and shall do whichever of the	447
following is applicable:	448

(1) If at the conclusion of the hearing the court finds	449
that the defendant is competent to stand trial, the defendant	450
shall be proceeded against as provided by law. If	451

(2) If the court finds that the defendant is incompetent to	452
stand trial, but that there is a substantial probability that the	453
defendant will become competent to stand trial before expiration	454
ofif the defendant is provided with a course of treatment, and	455
the maximum time limit specified for treatment underas specified	456
in division (D)(C) of this section has not expired, the court may	457
modify or continue in effect orders made at a previous hearing,	458
still subject to the maximum time that orders may be in effect, as	459
originally established under division (D) of this section. If,	460
after consideration of the examiner's recommendation, shall order	461
that treatment be continued, may change the facility or program at	462
which the treatment is to be continued, and shall specify whether	463
the treatment is to be continued at the same or a different	464
facility or program.	465

(3) If the court finds that the defendant is incompetent to	466
stand trial, if the defendant is charged with an offense listed in	467
division (C)(1) of this section, and if the court finds that there	468
is not a substantial probability that the defendant will become	469
competent to stand trial withineven if the defendant is provided	470
with a course of treatment, or if the maximum time that orders may	471
be in effect, as originally established underfor treatment	472
relative to that offense as specified in division (D)(C) of this	473
section, the court shall make a disposition as under division (C)	474
of this section.	475

(G) Thehas expired, further proceedings shall be as	476
provided in sections 2945.39, 2945.401, and 2945.402 of the	477
Revised Code.	478

(4) If the court finds that the defendant is incompetent to	479
stand trial, if the most serious offense with which the defendant	480
is charged is a misdemeanor or a felony other than a felony listed	481
in division (C)(1) of this section, and if the court finds that	482
there is not a substantial probability that the defendant will	483
become competent to stand trial even if the defendant is provided	484
with a course of treatment, or if the maximum time for treatment	485
relative to that offense as specified in division (C) of this	486
section has expired, the court shall dismiss the indictment,	487
information, or complaint against athe defendant finally found	488
incompetent to stand trial under division (C), (D), or (F) of this	489
section or whenever the prosecutor notifies the court the	490
prosecutor does not intend to prosecute the charges specified in	491
the indictment, information, or complaint. A	492

(H) A dismissal under this division (G) of this section is	493
not a bar to further criminal proceedingsprosecution based on the	494
same conduct unless all of the following conditions are present:	495

(1) After a finding under division (C), (D), or (F) of this	496
section that the defendant was incompetent to stand trial, an	497
affidavit alleging that the defendant was mentally ill and subject	498
to hospitalization by court order or mentally retarded and subject	499
to institutionalization by court order was filed and the defendant	500
either was found mentally ill or mentally retarded and subject to	501
hospitalization or institutionalization by court order, but was	502
later released, or was not so found. Whenever the issue of	503
competence to stand trial is raised, but no finding under division	504
(C), (D), or (F) of this section occurs because, before such a	505
finding, the court dismisses the indictment, information, or	506
complaint upon notice from the prosecutor that the prosecutor does	507
not intend to prosecute the charges, this division does not bar	508
further criminal proceedings based on the same conduct, but	509
divisions (H)(2), (3), and (4) of this section may bar further	510
proceedings, if the conditions they specify are not present.	511

(2) The time the defendant has been involuntarily detained	512
for examination or treatment under Chapter 5122. or 5123. of the	513
Revised Code pursuant to the filing of an affidavit under division	514
(C), (D), or (F) of this section and under this section and	515
sections 2945.37 and 2945.371 of the Revised Code does not exceed	516
one-third of the maximum prison term or term of imprisonment the	517
defendant might have received if convicted of the most serious	518
charge that was dismissed.	519

(3) Further criminal proceedings are not barred under	520
sections 2945.71 to 2945.73 of the Revised Code.	521

(4) The period of limitation for the offense committed has	522
not expired under section 2901.13 of the Revised Code, computed	523
without regard to division (H) of that section. The court shall	524
discharge the defendant unless the court or prosecutor files an	525
affidavit in probate court for civil commitment pursuant to	526
Chapter 5122. or 5123. of the Revised Code. If an affidavit for	527
civil commitment is filed, the court may detain the defendant for	528
ten days pending civil commitment. All of the following	529
provisions apply to persons charged with a misdemeanor or a felony	530
other than a felony listed in division (C)(1) of this section who	531
are committed by the probate court subsequent to the court's or	532
prosecutor's filing of an affidavit for civil commitment under	533
authority of this division:	534

(a) The chief clinical officer of the hospital or facility,	535
the managing officer of the institution, the director of the	536
program, or the person to which the defendant is committed or	537
admitted shall do all of the following:	538

(i) Notify the prosecutor, in writing, of the discharge of	539
the defendant, send the notice at least ten days prior to the	540
discharge unless the discharge is by the probate court, and state	541
in the notice the date on which the defendant will be discharged;	542

(ii) Notify the prosecutor, in writing, when the defendant	543
is absent without leave or is granted unsupervised, off-grounds	544
movement, and send this notice promptly after the discovery of the	545
absence without leave or prior to the granting of the	546
unsupervised, off-grounds movement, whichever is applicable;	547

(iii) Notify the prosecutor, in writing, of the change of	548
the defendant's commitment or admission to voluntary status, send	549
the notice promptly upon learning of the change to voluntary	550
status, and state in the notice the date on which the defendant	551
was committed or admitted on a voluntary status.	552

(b) Upon receiving notice that the defendant will be	553
granted unsupervised, off-grounds movement, the prosecutor either	554
shall re-indict the defendant or promptly notify the court that	555
the prosecutor does not intend to prosecute the charges against	556
the defendant.	557

(I) If a defendant is convicted of a crime and sentenced to	558
a jail or workhouse, the defendant's sentence shall be reduced by	559
the total number of days the defendant is confined for examination	560
evaluation to determine the defendant's competence to stand trial	561
or treatment under this section and sections 2945.37 and 2945.371	562
of the Revised Code or by the total number of days the defendant	563
is confined for evaluation to determine the defendant's mental	564
condition at the time of the offense charged.	565

(J) No statement made by a defendant in an examination or	566
hearing relating to the defendant's competence to stand trial	567
shall be used in evidence against the defendant on the issue of	568
guilt in any criminal action.	569

(K) Each court of common pleas and municipal court shall	570
designate a permanent court officer or employee to file affidavits	571
under division (C) of this section and section 2945.40 of the	572
Revised Code.	573

Sec. 2945.39.  (A) If a defendant who is charged with an	574
offense described in division (C)(1) of section 2945.38 of the	575
Revised Code is found incompetent to stand trial, after the	576
expiration of the maximum time for treatment as specified in	577
division (C) of that section or after the court finds that there	578
is not a substantial probability that the defendant will become	579
competent to stand trial even if the defendant is provided with a	580
course of treatment, one of the following applies:	581

(1) The court or the prosecutor may file an affidavit in	582
probate court for civil commitment of the defendant in the manner	583
provided in Chapter 5122. or 5123. of the Revised Code. If the	584
court or prosecutor files an affidavit for civil commitment, the	585
court may detain the defendant for ten days pending civil	586
commitment. If the probate court commits the defendant subsequent	587
to the court's or prosecutor's filing of an affidavit for civil	588
commitment, the chief clinical officer of the hospital or	589
facility, the managing officer of the institution, the director of	590
the program, or the person to which the defendant is committed or	591
admitted shall send to the prosecutor the notices described in	592
divisions (H)(4)(a)(i) to (iii) of section 2945.38 of the Revised	593
Code within the periods of time and under the circumstances	594
specified in those divisions.	595

(2) On the motion of the prosecutor or on its own motion,	596
the court may retain jurisdiction over the defendant if, at a	597
hearing, the court finds both of the following by clear and	598
convincing evidence:	599

(a) The defendant committed the offense with which the	600
defendant is charged.	601

(b) The defendant is a mentally ill person subject to	602
hospitalization by court order or a mentally retarded person	603
subject to institutionalization by court order.	604

(B) In making its determination under division (A)(2) of	605
this section as to whether to retain jurisdiction over the	606
defendant, the court may consider all relevant evidence,	607
including, but not limited to, any relevant psychiatric,	608
psychological, or medical testimony or reports, the acts	609
constituting the offense charged, and any history of the defendant	610
that is relevant to the defendant's ability to conform to the law.	611

(C) If the court conducts a hearing as described in division	612
(A)(2) of this section and if the court does not make both	613
findings described in divisions (A)(2)(a) and (b) of this section	614
by clear and convincing evidence, the court shall dismiss the	615
indictment, information, or complaint against the defendant. Upon	616
the dismissal, the court shall discharge the defendant unless the	617
court or prosecutor files an affidavit in probate court for civil	618
commitment of the defendant pursuant to chapterChapter 5122. or	619
5123. of the Revised Code. If the court or prosecutor files an	620
affidavit for civil commitment, the court may order that the	621
defendant be detained for up to ten days pending the civil	622
commitment. If the probate court commits the defendant subsequent	623
to the court's or prosecutor's filing of an affidavit for civil	624
commitment, the chief clinical officer of the hospital or	625
facility, the managing officer of the institution, the director of	626
the program, or the person to which the defendant is committed or	627
admitted shall send to the prosecutor the notices described in	628
divisions (H)(4)(a)(i) to (iii) of section 2945.38 of the Revised	629
Code within the periods of time and under the circumstances	630
specified in those divisions. A dismissal of charges under this	631
division is not a bar to further criminal proceedings based on the	632
same conduct.	633

(D)(1) If the court conducts a hearing as described in	634
division (A)(2) of this section and if the court makes the	635
findings described in divisions (A)(2)(a) and (b) of this section	636
by clear and convincing evidence, the court shall commit the	637
defendant to a hospital operated by the department of mental	638
health, a facility operated by the department of mental	639
retardation and developmental disabilities, or another medical or	640
psychiatric facility, as appropriate. In determining the place	641
and nature of the commitment, the court shall order the least	642
restrictive commitment alternative available that is consistent	643
with public safety and the welfare of the defendant. In weighing	644
these factors, the court shall give preference to protecting	645
public safety.	646

(2) If a court makes a commitment of a defendant under	647
division (D)(1) of this section, the prosecutor shall send to the	648
place of commitment all reports of the defendant's current mental	649
condition and, except as otherwise provided in this division, any	650
other relevant information, including, but not limited to, a	651
transcript of the hearing held pursuant to division (A)(2) of this	652
section, copies of relevant police reports, and copies of any	653
prior arrest and conviction records that pertain to the defendant	654
and that the prosecutor possesses. The prosecutor shall send the	655
reports of the defendant's current mental condition in every case	656
of commitment, and, unless the prosecutor determines that the	657
release of any of the other relevant information to unauthorized	658
persons would interfere with the effective prosecution of any	659
person or would create a substantial risk of harm to any person,	660
the prosecutor also shall send the other relevant information.	661
Upon admission of a defendant committed under division (D)(1) of	662
this section, the place of commitment shall send to the board of	663
alcohol, drug addiction, and mental health services or the	664
community mental health board serving the county in which the	665
charges against the defendant were filed a copy of all reports of	666
the defendant's current mental condition and a copy of the other	667
relevant information provided by the prosecutor under this	668
division, including, if provided, a transcript of the hearing held	669
pursuant to division (A)(2) of this section, the relevant police	670
reports, and the prior arrest and conviction records that pertain	671
to the defendant and that the prosecutor possesses.	672

(3) If a court makes a commitment under division (D)(1) of	673
this section, all further proceedings shall be in accordance with	674
sections 2945.401 and 2945.402 of the Revised Code.	675

Section 2. That existing sections 2945.371 and 2945.39 and	676
section 2945.38 of the Revised Code as it results from Am. Sub.	677
S.B. 285 of the 121st General Assembly are hereby repealed.	678

Section 3. This act presents section 2945.38 of the Revised	679
Code as it existed prior to its amendment by Am. Sub. S.B. 285 of	680
the 121st General Assembly. The revived version of that section	681
supersedes the version of that section repealed by Section 2 of	682
this act and omits and repeals all changes made to that section by	683
Am. Sub. S.B. 285 of the 121st General Assembly. The omission and	684
repeal of those changes is not intended to have any substantive	685
effect and is intended to present in this act the version of	686
section 2945.38 of the Revised Code that is currently effective.	687
The repeal of section 2945.38 of the Revised Code by Section 2 of	688
this act is to give effect to the holding of the Ohio Supreme	689
Court in State v. Sullivan (2001), 90 Ohio St.3d 502, that section	690
2945.38 of the Revised Code, as amended by Am. Sub. S.B. 285 of	691
the 121st General Assembly, is unconstitutional.	692