SENATOR Oelslager

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 or of assisting	92
in the defendant's defense within one year if the defendant is	93
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. Upon receiving	234
the petition, the court shall hold a hearing on the petition and	235
may authorize the involuntary administration of medication.	236

(C)(2) If the court finds that the defendant is incompetent	237
to stand trial and that, even if the defendant is provided with a	238
course of treatment, there is not a substantial probability that	239
the defendant will become competent to stand trial within one	240
year, and it appears to the court, through a review of the report	241
of an examiner under section 2945.371 of the Revised Code or	242
otherwise, that the defendant is mentally ill or mentally retarded	243
shall order the discharge of the defendant, unless upon motion of	244
the prosecutor or on its own motion, the court may causeeither	245
seeks to retain jurisdiction over the defendant pursuant to	246
section 2945.39 of the Revised Code or files an affidavit to be	247
filed in the probate court under section 5122.11 or 5123.71for	248
the civil commitment of the defendant pursuant to Chapter 5122. or	249
5123. of the Revised Code alleging that the defendant is a	250
mentally ill person subject to hospitalization by court order or a	251
mentally retarded person subject to institutionalization by court	252
order, as defined in sections 5122.01 and 5123.01 of the Revised	253
Code. When theIf an affidavit is filed in the probate court, the	254
trial court shall send to the probate court a copycopies of all	255
written reports of the defendant's mental condition that were	256
prepared pursuant to section 2945.371 of the Revised Code.	257

The trial court may issue the temporary order of detention	258
that a probate court may issue under section 5122.11 or 5123.71 of	259
the Revised Code, to remain in effect until the probable cause or	260
initial hearing in the probate court. Further proceedings in the	261
probate court are then civil proceedings governed by Chapter 5122.	262
or 5123. of the Revised Code.	263

The chief clinical officer of the hospital or facility, the	264
managing officer of the institution, the director of the program,	265
or the person to which the defendant is committed or admitted	266
shall send, at least ten days prior to the discharge or	267
immediately upon learning of a change to voluntary status, written	268
notice to the prosecutor of the date on which the defendant will	269
be discharged or has been admitted on voluntary status.	270

(D) If the court finds that the defendant is incompetent to	271
stand trial and it appears to the court, through a review of the	272
report of an examiner or otherwise, that the defendant is mentally	273
ill or mentally retarded, but that there is a substantial	274
probability the defendant will become competent to stand trial	275
within one year if provided a course of treatment, and the offense	276
is one for which the defendant could be incarcerated, if	277
convicted, the court shall order the defendant to undergo	278
treatment at a facility operated by the department of mental	279
health or the department of mental retardation and developmental	280
disabilities, at a facility certified by the appropriate	281
department as qualified to treat mental illness or mental	282
retardation, or at a public or private community mental health or	283
mental retardation facility, or it may order private treatment by	284
a psychiatrist or other mental health or mental retardation	285
professional. The order may restrict the defendant's freedom of	286
movement, as the court considers necessary. In determining	287
placement alternatives, the court shall consider the dangerousness	288
of the defendant to self and others, the need for security, and	289
the type of crime involved and shall order the least restrictive	290
alternative available that is consistent with public safety and	291
treatment goals.	292

(C) No defendant shall be required to undergo treatment,	293
including any continuing evaluation and treatment, under this	294
division (B)(1) of this section for longer than the lesser of	295
fifteen months or one-third of the longest prison term that might	296
whichever of the following periods is applicable:	297

(1) One year, if the most serious offense with which the	298
defendant is charged is one of the following offenses:	299

(a) Aggravated murder, murder, or an offense of violence	300
for which a sentence of death or life imprisonment may be imposed	301
for conviction of;	302

(b) An offense of violence that is a felony or one-third of	303
the longest term of imprisonment that might be imposed for	304
conviction ofof the first or second degree;	305

(c) A conspiracy to commit, an attempt to commit, or	306
complicity in the commission of an offense described in division	307
(C)(1)(a) or (b) of this section if the conspiracy, attempt, or	308
complicity is a felony of the first or second degree.	309

(2) Six months, if the most serious offense with which the	310
defendant is charged is a felony other than a felony described in	311
division (C)(1) of this section;	312

(3) Sixty days, if the most serious offense with which the	313
defendant is charged is a misdemeanor if the defendant is found	314
guilty of the most serious crime with which the defendant was	315
charged at the time of the hearing. No order issued under this	316
division shall remain in effect after the indictment, information,	317
or complaint is dismissed. The court shall notify the prosecutor,	318
defense counsel, and the chief clinical officer of the facility or	319
the managing officer of the institution or facility at which, or	320
person with whom, the defendant was ordered to undergo treatment	321
pursuant to this division whenever an indictment, information, or	322
complaint against a defendant is dismissed and whenever the court	323
revokes an order made under this division. If the maximum time	324
during which an order of the court may be in effect expires, the	325
court, within three days, shall conduct another hearing under	326
section 2945.37 of the Revised Code to determine if the defendant	327
is competent to stand trial, but at the close of such a hearing, a	328
disposition shall be made under division (A) of this section or if	329
the defendant is found incompetent to stand trial, disposition	330
shall be made as under division (C) of this sectionof the first	331
or second degree;	332

(4) Thirty days, if the most serious offense with which the	333
defendant is charged is a misdemeanor of the third or fourth	334
degree, a minor misdemeanor, or an unclassified misdemeanor.	335

(D) Any defendant who is committed pursuant to this division	336
section shall not voluntarily admit selfthe defendant or be	337
voluntarily admitted to a hospital or institution pursuant to	338
section 5122.02 of the Revised Code or to an institution pursuant	339
to section, 5122.15, 5123.69, or 5123.76 of the Revised Code.	340

(E) Except as otherwise provided in this division, a	341
defendant who is charged with an offense and is committed to a	342
hospital or other institution by the court under this section	343
shall not be granted unsupervised on-grounds movement, supervised	344
off-grounds movement, or nonsecured status. The court may grant a	345
defendant supervised off-grounds movement to obtain medical	346
treatment or specialized habilitation treatment services if the	347
person who supervises the treatment or the continuing evaluation	348
and treatment of the defendant ordered under division (B)(1)(a) of	349
this section informs the court that the treatment or continuing	350
evaluation and treatment cannot be provided at the hospital or the	351
institution to which the defendant is committed. The chief	352
clinical officer of the hospital or the managing officer of the	353
institution to which the defendant is committed or a designee of	354
either of those persons may grant a defendant movement to a	355
medical facility for an emergency medical situation with	356
appropriate supervision to ensure the safety of the defendant,	357
staff, and community during that emergency medical situation. The	358
chief clinical officer of the hospital or the managing officer of	359
the institution shall notify the court within twenty-four hours of	360
the defendant's movement to the medical facility for an emergency	361
medical situation under this division.	362

(F) The person who supervises the treatment or continuing	363
evaluation and treatment of a defendant ordered to undergo	364
treatment or continuing evaluation and treatment under division	365
(D)(B)(1)(a) of this section shall file a written report with the	366
court and send copies to the prosecutor and defense counsel at the	367
following times:	368

(1) After the first ninety days of treatment and after each	369
one hundred eighty days of treatment thereafter;	370

(2) Whenever the person believes the defendant is competent	371
to stand trial;	372

(3) Whenever the person believes that there is not a	373
substantial probability that the defendant will become competent	374
to stand trial;	375

(4) Fourteencapable of understanding the nature and	376
objective of the proceedings against the defendant or of assisting	377
in the defendant's defense;	378

(2) For a felony offense, fourteen days before expiration	379
of the maximum time an order issued underfor treatment as	380
specified in division (D)(C) of this section may be in effectand	381
fourteen days before the expiration of the maximum time for	382
continuing evaluation and treatment as specified in division	383
(B)(1)(a) of this section, and, for a misdemeanor offense, ten	384
days before the expiration of the maximum time for treatment, as	385
specified in that division.(C) of this section;	386

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

387

(4) Whenever the person who supervises the treatment or	388
continuing evaluation and treatment of a defendant ordered under	389
division (B)(1)(a) of this section believes that there is not a	390
substantial probability that the defendant will become capable of	391
understanding the nature and objective of the proceedings against	392
the defendant or of assisting in the defendant's defense even if	393
the defendant is provided with a course of treatment.	394

(G) A report under division (F) of this section shall	395
contain the examiner's findings of the examiner, the facts in	396
reasonable detail on which the findings are based, and the	397
examiner's opinion of the examiner as to the defendant's	398
competence to stand trialcapability of understanding the nature	399
and objective of the proceedings against the defendant or of	400
assisting in the defendant's defense. If, in the examiner finds	401
that the defendant is incompetent to stand trial, the examiner	402
shall state an opinion in the report on the likelihood of the	403
defendant's becoming competent to stand trial within one year	404
examiner's opinion, the defendant remains incapable of	405
understanding the nature and objective of the proceedings against	406
the defendant or of assisting in the defendant's defense and there	407
is a substantial probability that the defendant will become	408
capable of understanding the nature and objective of the	409
proceedings against the defendant or of assisting in the	410
defendant's defense if the defendant is provided with a course of	411
treatment, if in the examiner's opinion the defendant remains	412
mentally ill or mentally retarded, and if the maximum time for	413
treatment as specified in division (C) of this section has not	414
expired, the report also shall contain the examiner's	415
recommendation as to the least restrictive treatment alternative	416
that is consistent with the defendant's treatment needs for	417
restoration to competency and with the safety of the community.	418
The court shall provide copies of the report to the prosecutor and	419
defense counsel.	420

(F) Within(H) If a defendant is committed pursuant to	421
division (B)(1) of this section, within ten days after receipt of	422
a report required by division (E) of this sectionthe treating	423
physician of the defendant or the examiner of the defendant who is	424
employed or retained by the treating facility advises that there	425
is not a substantial probability that the defendant will become	426
capable of understanding the nature and objective of the	427
proceedings against the defendant or of assisting in the	428
defendant's defense even if the defendant is provided with a	429
course of treatment, within ten days after the expiration of the	430
maximum time for treatment as specified in division (C) of this	431
section, within ten days after the expiration of the maximum time	432
for continuing evaluation and treatment as specified in division	433
(B)(1)(a) of this section, within thirty days after a defendant's	434
request for a hearing that is made after six months of treatment,	435
or within thirty days after being advised by the treating	436
physician or examiner that the defendant is competent to stand	437
trial, whichever is the earliest, the court shall hold aconduct	438
another hearing on the issue of the competence ofto determine if	439
the defendant is competent to stand trial, as provided in section	440
2945.37 of the Revised Code.and shall do whichever of the	441
following is applicable:	442

(1) If at the conclusion of the hearing the court finds	443
that the defendant is competent to stand trial, the defendant	444
shall be proceeded against as provided by law. If	445

(2) If the court finds that the defendant is incompetent to	446
stand trial, but that there is a substantial probability that the	447
defendant will become competent to stand trial before expiration	448
ofif the defendant is provided with a course of treatment, and	449
the maximum time limit specified for treatment underas specified	450
in division (D)(C) of this section has not expired, the court may	451
modify or continue in effect orders made at a previous hearing,	452
still subject to the maximum time that orders may be in effect, as	453
originally established under division (D) of this section. If,	454
after consideration of the examiner's recommendation, shall order	455
that treatment be continued, may change the facility or program at	456
which the treatment is to be continued, and shall specify whether	457
the treatment is to be continued at the same or a different	458
facility or program.	459

(3) If the court finds that the defendant is incompetent to	460
stand trial, if the defendant is charged with an offense listed in	461
division (C)(1) of this section, and if the court finds that there	462
is not a substantial probability that the defendant will become	463
competent to stand trial withineven if the defendant is provided	464
with a course of treatment, or if the maximum time that orders may	465
be in effect, as originally established underfor treatment	466
relative to that offense as specified in division (D)(C) of this	467
section, the court shall make a disposition as under division (C)	468
of this section.	469

(G) Thehas expired, further proceedings shall be as	470
provided in sections 2945.39, 2945.401, and 2945.402 of the	471
Revised Code.	472

(4) If the court finds that the defendant is incompetent to	473
stand trial, if the most serious offense with which the defendant	474
is charged is a misdemeanor or a felony other than a felony listed	475
in division (C)(1) of this section, and if the court finds that	476
there is not a substantial probability that the defendant will	477
become competent to stand trial even if the defendant is provided	478
with a course of treatment, or if the maximum time for treatment	479
relative to that offense as specified in division (C) of this	480
section has expired, the court shall dismiss the indictment,	481
information, or complaint against athe defendant finally found	482
incompetent to stand trial under division (C), (D), or (F) of this	483
section or whenever the prosecutor notifies the court the	484
prosecutor does not intend to prosecute the charges specified in	485
the indictment, information, or complaint. A	486

(H) A dismissal under this division (G) of this section is	487
not a bar to further criminal proceedingsprosecution based on the	488
same conduct unless all of the following conditions are present:	489

(1) After a finding under division (C), (D), or (F) of this	490
section that the defendant was incompetent to stand trial, an	491
affidavit alleging that the defendant was mentally ill and subject	492
to hospitalization by court order or mentally retarded and subject	493
to institutionalization by court order was filed and the defendant	494
either was found mentally ill or mentally retarded and subject to	495
hospitalization or institutionalization by court order, but was	496
later released, or was not so found. Whenever the issue of	497
competence to stand trial is raised, but no finding under division	498
(C), (D), or (F) of this section occurs because, before such a	499
finding, the court dismisses the indictment, information, or	500
complaint upon notice from the prosecutor that the prosecutor does	501
not intend to prosecute the charges, this division does not bar	502
further criminal proceedings based on the same conduct, but	503
divisions (H)(2), (3), and (4) of this section may bar further	504
proceedings, if the conditions they specify are not present.	505

(2) The time the defendant has been involuntarily detained	506
for examination or treatment under Chapter 5122. or 5123. of the	507
Revised Code pursuant to the filing of an affidavit under division	508
(C), (D), or (F) of this section and under this section and	509
sections 2945.37 and 2945.371 of the Revised Code does not exceed	510
one-third of the maximum prison term or term of imprisonment the	511
defendant might have received if convicted of the most serious	512
charge that was dismissed.	513

(3) Further criminal proceedings are not barred under	514
sections 2945.71 to 2945.73 of the Revised Code.	515

(4) The period of limitation for the offense committed has	516
not expired under section 2901.13 of the Revised Code, computed	517
without regard to division (H) of that section. The court shall	518
discharge the defendant unless the court or prosecutor files an	519
affidavit in probate court for civil commitment pursuant to	520
Chapter 5122. or 5123. of the Revised Code. If an affidavit for	521
civil commitment is filed, the court may detain the defendant for	522
ten days pending civil commitment. All of the following	523
provisions apply to persons charged with a misdemeanor or a felony	524
other than a felony listed in division (C)(1) of this section who	525
are committed by the probate court subsequent to the court's or	526
prosecutor's filing of an affidavit for civil commitment under	527
authority of this division:	528

(a) The chief clinical officer of the hospital or facility,	529
the managing officer of the institution, the director of the	530
program, or the person to which the defendant is committed or	531
admitted shall do all of the following:	532

(i) Notify the prosecutor, in writing, of the discharge of	533
the defendant, send the notice at least ten days prior to the	534
discharge unless the discharge is by the probate court, and state	535
in the notice the date on which the defendant will be discharged;	536

(ii) Notify the prosecutor, in writing, when the defendant	537
is absent without leave or is granted unsupervised, off-grounds	538
movement, and send this notice promptly after the discovery of the	539
absence without leave or prior to the granting of the	540
unsupervised, off-grounds movement, whichever is applicable;	541

(iii) Notify the prosecutor, in writing, of the change of	542
the defendant's commitment or admission to voluntary status, send	543
the notice promptly upon learning of the change to voluntary	544
status, and state in the notice the date on which the defendant	545
was committed or admitted on a voluntary status.	546

(b) Upon receiving notice that the defendant will be	547
granted unsupervised, off-grounds movement, the prosecutor either	548
shall re-indict the defendant or promptly notify the court that	549
the prosecutor does not intend to prosecute the charges against	550
the defendant.	551

(I) If a defendant is convicted of a crime and sentenced to	552
a jail or workhouse, the defendant's sentence shall be reduced by	553
the total number of days the defendant is confined for examination	554
evaluation to determine the defendant's competence to stand trial	555
or treatment under this section and sections 2945.37 and 2945.371	556
of the Revised Code or by the total number of days the defendant	557
is confined for evaluation to determine the defendant's mental	558
condition at the time of the offense charged.	559

(J) No statement made by a defendant in an examination or	560
hearing relating to the defendant's competence to stand trial	561
shall be used in evidence against the defendant on the issue of	562
guilt in any criminal action.	563

(K) Each court of common pleas and municipal court shall	564
designate a permanent court officer or employee to file affidavits	565
under division (C) of this section and section 2945.40 of the	566
Revised Code.	567

Sec. 2945.39.  (A) If a defendant who is charged with an	568
offense described in division (C)(1) of section 2945.38 of the	569
Revised Code is found incompetent to stand trial, after the	570
expiration of the maximum time for treatment as specified in	571
division (C) of that section or after the court finds that there	572
is not a substantial probability that the defendant will become	573
competent to stand trial even if the defendant is provided with a	574
course of treatment, one of the following applies:	575

(1) The court or the prosecutor may file an affidavit in	576
probate court for civil commitment of the defendant in the manner	577
provided in Chapter 5122. or 5123. of the Revised Code. If the	578
court or prosecutor files an affidavit for civil commitment, the	579
court may detain the defendant for ten days pending civil	580
commitment. If the probate court commits the defendant subsequent	581
to the court's or prosecutor's filing of an affidavit for civil	582
commitment, the chief clinical officer of the hospital or	583
facility, the managing officer of the institution, the director of	584
the program, or the person to which the defendant is committed or	585
admitted shall send to the prosecutor the notices described in	586
divisions (H)(4)(a)(i) to (iii) of section 2945.38 of the Revised	587
Code within the periods of time and under the circumstances	588
specified in those divisions.	589

(2) On the motion of the prosecutor or on its own motion,	590
the court may retain jurisdiction over the defendant if, at a	591
hearing, the court finds both of the following by clear and	592
convincing evidence:	593

(a) The defendant committed the offense with which the	594
defendant is charged.	595

(b) The defendant is a mentally ill person subject to	596
hospitalization by court order or a mentally retarded person	597
subject to institutionalization by court order.	598

(B) In making its determination under division (A)(2) of	599
this section as to whether to retain jurisdiction over the	600
defendant, the court may consider all relevant evidence,	601
including, but not limited to, any relevant psychiatric,	602
psychological, or medical testimony or reports, the acts	603
constituting the offense charged, and any history of the defendant	604
that is relevant to the defendant's ability to conform to the law.	605

(C) If the court conducts a hearing as described in division	606
(A)(2) of this section and if the court does not make both	607
findings described in divisions (A)(2)(a) and (b) of this section	608
by clear and convincing evidence, the court shall dismiss the	609
indictment, information, or complaint against the defendant. Upon	610
the dismissal, the court shall discharge the defendant unless the	611
court or prosecutor files an affidavit in probate court for civil	612
commitment of the defendant pursuant to chapterChapter 5122. or	613
5123. of the Revised Code. If the court or prosecutor files an	614
affidavit for civil commitment, the court may order that the	615
defendant be detained for up to ten days pending the civil	616
commitment. If the probate court commits the defendant subsequent	617
to the court's or prosecutor's filing of an affidavit for civil	618
commitment, the chief clinical officer of the hospital or	619
facility, the managing officer of the institution, the director of	620
the program, or the person to which the defendant is committed or	621
admitted shall send to the prosecutor the notices described in	622
divisions (H)(4)(a)(i) to (iii) of section 2945.38 of the Revised	623
Code within the periods of time and under the circumstances	624
specified in those divisions. A dismissal of charges under this	625
division is not a bar to further criminal proceedings based on the	626
same conduct.	627

(D)(1) If the court conducts a hearing as described in	628
division (A)(2) of this section and if the court makes the	629
findings described in divisions (A)(2)(a) and (b) of this section	630
by clear and convincing evidence, the court shall commit the	631
defendant to a hospital operated by the department of mental	632
health, a facility operated by the department of mental	633
retardation and developmental disabilities, or another medical or	634
psychiatric facility, as appropriate. In determining the place	635
and nature of the commitment, the court shall order the least	636
restrictive commitment alternative available that is consistent	637
with public safety and the welfare of the defendant. In weighing	638
these factors, the court shall give preference to protecting	639
public safety.	640

(2) If a court makes a commitment of a defendant under	641
division (D)(1) of this section, the prosecutor shall send to the	642
place of commitment all reports of the defendant's current mental	643
condition and, except as otherwise provided in this division, any	644
other relevant information, including, but not limited to, a	645
transcript of the hearing held pursuant to division (A)(2) of this	646
section, copies of relevant police reports, and copies of any	647
prior arrest and conviction records that pertain to the defendant	648
and that the prosecutor possesses. The prosecutor shall send the	649
reports of the defendant's current mental condition in every case	650
of commitment, and, unless the prosecutor determines that the	651
release of any of the other relevant information to unauthorized	652
persons would interfere with the effective prosecution of any	653
person or would create a substantial risk of harm to any person,	654
the prosecutor also shall send the other relevant information.	655
Upon admission of a defendant committed under division (D)(1) of	656
this section, the place of commitment shall send to the board of	657
alcohol, drug addiction, and mental health services or the	658
community mental health board serving the county in which the	659
charges against the defendant were filed a copy of all reports of	660
the defendant's current mental condition and a copy of the other	661
relevant information provided by the prosecutor under this	662
division, including, if provided, a transcript of the hearing held	663
pursuant to division (A)(2) of this section, the relevant police	664
reports, and the prior arrest and conviction records that pertain	665
to the defendant and that the prosecutor possesses.	666

(3) If a court makes a commitment under division (D)(1) of	667
this section, all further proceedings shall be in accordance with	668
sections 2945.401 and 2945.402 of the Revised Code.	669

Section 2. That existing sections 2945.371 and 2945.39 and	670
section 2945.38 of the Revised Code as it results from Am. Sub.	671
S.B. 285 of the 121st General Assembly are hereby repealed.	672

Section 3. This act presents section 2945.38 of the Revised	673
Code as it existed prior to its amendment by Am. Sub. S.B. 285 of	674
the 121st General Assembly. The revived version of that section	675
supersedes the version of that section repealed by Section 2 of	676
this act and omits and repeals all changes made to that section by	677
Am. Sub. S.B. 285 of the 121st General Assembly. The omission and	678
repeal of those changes is not intended to have any substantive	679
effect and is intended to present in this act the version of	680
section 2945.38 of the Revised Code that is currently effective.	681
The repeal of section 2945.38 of the Revised Code by Section 2 of	682
this act is to give effect to the holding of the Ohio Supreme	683
Court in State v. Sullivan (2001), 90 Ohio St.3d 502, that section	684
2945.38 of the Revised Code, as amended by Am. Sub. S.B. 285 of	685
the 121st General Assembly, is unconstitutional.	686