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Sub. S. B. No. 122As Reported by the Senate Judiciary-Criminal Justice CommitteeAs Reported by the Senate Judiciary-Criminal Justice Committee
124th General Assembly | Regular Session | 2001-2002 |
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SENATOR Oelslager
A BILL
To amend sections 2945.371 and 2945.39, to
revive and
amend section 2945.38, and to repeal
section
2945.38 of the Revised Code as it results
from Am.
Sub. S.B. 285 of the 121st General
Assembly
relative to the determination of a
defendant's
competency to stand trial and whether
or not there
is a substantial probability that the
defendant
will become competent to stand trial if
provided
with a course of treatment.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2945.371, 2945.38, and 2945.39 of
the Revised Code be amended to read as follows:
Sec. 2945.371. (A) If the issue of a defendant's
competence
to stand trial is raised or if a defendant enters a plea of not
guilty by reason of
insanity, the court may order one or more
evaluations of the defendant's
present mental condition
or, in the
case
of a plea of not guilty by reason of insanity, of the
defendant's mental
condition at the time of the offense charged.
An examiner shall conduct the
evaluation.
(B) If the court orders more than
one evaluation under
division (A) of
this section,
the prosecutor and the defendant may
recommend to the court an
examiner whom each prefers to perform
one of the
evaluations. If a defendant enters a plea of not
guilty by reason of
insanity and if the court does not designate
an examiner recommended by the
defendant, the court shall inform
the defendant that the defendant may have
independent expert
evaluation and that, if the defendant is unable to obtain
independent expert evaluation, it will be obtained for the
defendant at public
expense if the defendant is indigent. (C) If the court orders an evaluation under division
(A) of
this section,
the defendant shall be
available at the times and
places established by the examiners who are to
conduct the
evaluation.
The court may order a defendant
who has been released
on bail or recognizance to submit to an
evaluation under this
section. If a defendant who
has been
released on bail or
recognizance refuses to submit to a complete
evaluation, the court
may amend the conditions of
bail or
recognizance and order the
sheriff to take the defendant into
custody and deliver the
defendant to a center, program, or
facility
operated or certified
by the department of mental health or the department
of mental
retardation and developmental disabilities where
the defendant
may
be held for
evaluation for a reasonable period of time not to
exceed twenty
days. (D) A defendant who has not been released on bail or
recognizance may be evaluated at the
defendant's place of
detention. Upon the request of the
examiner, the court
may order
the sheriff to
transport the defendant to a program or facility
operated by the
department of mental health or the department of
mental
retardation and developmental disabilities, where the
defendant may be held
for evaluation for a reasonable period of
time not
to exceed
twenty days, and to return the defendant to the
place of
detention after the evaluation. A
municipal court may
make an order under this division only upon the
request of a
certified forensic
center examiner. (E) If a court orders the evaluation to determine a
defendant's
mental condition at the time of the offense charged,
the court shall inform
the examiner of the offense with which the
defendant is charged. (F) In conducting an evaluation of a defendant's mental
condition
at the time of the offense charged, the examiner shall
consider all relevant
evidence. If the offense charged involves
the use of force against another
person, the relevant evidence to
be considered includes, but is not limited
to, any evidence that
the defendant suffered, at the time of the commission of
the
offense, from the "battered woman syndrome." (G) The examiner shall file a written
report with the
court
within thirty days after entry of a court order for
evaluation,
and the court shall provide copies
of the report to the prosecutor
and defense counsel. The report shall
include all of the
following: (1) The examiner's findings; (2) The facts in reasonable detail on which the findings are
based; (3) If the evaluation was ordered to determine the
defendant's competence
to stand trial, all of the following
findings or recommendations that are
applicable: (a) Whether the defendant is capable of understanding the
nature
and objective of the proceedings against the defendant or
of assisting in the
defendant's defense; (b) If the examiner's opinion is that the defendant is
incapable
of understanding the nature and objective of the
proceedings against the
defendant
or of assisting in the
defendant's defense, whether the defendant presently is
mentally
ill or mentally retarded and, if the examiner's
opinion is that
the defendant presently is mentally retarded,
whether the
defendant appears to be a mentally retarded person
subject to
institutionalization by court order; (c)
If the examiner's opinion is that the defendant is
incapable of understanding the nature and objective of the
proceedings against the defendant or of assisting in the
defendant's defense, the examiner's opinion as to the likelihood
of the defendant becoming capable of understanding the nature and
objective of the proceedings against the defendant or of assisting
in the defendant's defense within one year if the defendant is
provided with a course of treatment; (d) If the examiner's opinion is that the defendant is
incapable
of understanding the nature and objective of the
proceedings against the
defendant
or of assisting in the
defendant's defense and that the defendant presently is
mentally
ill or mentally retarded, the
examiner's recommendation as to the
least restrictive treatment alternative,
consistent with the
defendant's treatment needs for restoration to competency
and with
the safety of the community;. (4) If the evaluation was ordered to determine the
defendant's mental
condition at the time of the offense charged,
the examiner's findings as to
whether the defendant, at the
time
of the offense charged, did not know, as a result of a severe
mental
disease or defect, the wrongfulness of the defendant's acts
charged. (H) If
the examiner's report filed under division (G)
of
this section indicates that in the examiner's opinion the
defendant is
incapable of understanding the nature and objective
of the
proceedings against the defendant or of assisting in the
defendant's defense and that in the examiner's opinion
the
defendant appears to be
a mentally retarded person subject to
institutionalization by court order, the
court shall order the
defendant to undergo a separate mental retardation
evaluation
conducted by a psychologist designated by the director of mental
retardation and developmental disabilities. Divisions
(C) to (F)
of
this section apply in relation to a separate mental retardation
evaluation
conducted under this division. The psychologist
appointed under
this division to conduct the separate mental
retardation evaluation shall file
a written report with the court
within thirty days after the entry of the
court
order requiring
the separate mental retardation evaluation, and the court
shall
provide copies of the report to the prosecutor and defense
counsel. The
report
shall include all of the information
described in divisions
(G)(1) to (4) of this section. If the
court orders a separate mental
retardation evaluation of a
defendant
under this division, the court shall not conduct a
hearing under divisions
(B) to (H) of
section 2945.37 of the
Revised
Code regarding that defendant
until a report of the
separate mental retardation evaluation conducted under
this
division has been filed. Upon the filing of that report, the
court shall
conduct the hearing within the period of time
specified in division
(C) of section 2945.37 of the
Revised
Code. (I) An examiner appointed under
divisions (A) and (B) of
this section or under division
(H) of this section to evaluate a
defendant to determine the
defendant's competence to stand
trial
also may be
appointed to
evaluate a
defendant who has entered a
plea of not guilty by reason of
insanity, but an examiner of that
nature shall prepare
separate reports on
the issue of competence
to stand trial and the defense of not
guilty by reason of
insanity. (J) No statement that a defendant makes in an evaluation
or
hearing under divisions (A) to (H) of this section
relating to the
defendant's competence to stand trial or to the
defendant's mental
condition at the time of the offense charged shall be used
against
the defendant on the issue of guilt in any criminal action or
proceeding, but, in a criminal action or proceeding, the
prosecutor or defense
counsel may call as a witness any person who
evaluated the defendant or
prepared a report pursuant to a
referral under this section. Neither the
appointment nor the
testimony of an examiner appointed under this section
precludes
the prosecutor or defense counsel from calling other witnesses or
presenting other evidence on competency or insanity issues. (K) Persons appointed as examiners
under divisions (A) and
(B) of this section or under
division (H) of this section shall be
paid a reasonable amount for
their services and
expenses, as
certified by the court. The certified amount shall be paid by
the
county in the case of county courts and courts of common pleas and
by the
legislative authority, as defined in section 1901.03 of the
Revised Code,
in the case of municipal courts.
Sec. 2945.38. (A) If
the issue of a defendant's competence
to stand trial is raised and if the court
finds, upon
conducting
the hearing
provided for in section 2945.37 of the Revised Code,
finds that the
defendant is competent to stand trial, the
defendant
shall be
proceeded
against as provided by law. If the
court finds
the defendant
is found
competent
to stand trial and
the defendant
is receiving psychotropic drugs or
other
medication,
the court
shall
may authorize the continued
administration of the
drugs or
medication or other appropriate
treatment in order to
maintain the
defendant's competence to
stand
trial, unless the
defendant's
attending physician advises
the
court against
continuation of the
drugs, other medication, or
treatment. (B)(1)(a) If, after taking into consideration all relevant
reports, information, and other evidence, the court finds that the
defendant is incompetent
to
stand trial, it shall also make a
finding based on the
evidence as
to whether
and that there is a
substantial probability that
the defendant
will become competent
to stand trial within one
year, if the
defendant is provided with
a course of treatment, the court shall order the defendant to
undergo treatment.
If the defendant has been charged with a felony
offense and if, after taking into consideration all relevant
reports, information, and other evidence, the court finds that the
defendant is incompetent to stand trial, but the court is unable
at that time to determine whether there is a substantial
probability that the defendant will become competent to stand
trial within one year if the defendant is provided with a course
of treatment, the court shall order continuing evaluation and
treatment of the defendant for a period not to exceed four months
to determine whether there is a substantial probability that the
defendant will become competent to stand trial within one year if
the defendant is provided with a course of treatment.
(b) The court order for the defendant to undergo treatment
or continuing evaluation and treatment under division (B)(1)(a) of
this section shall specify that the treatment or continuing
evaluation and treatment shall occur at a facility operated by the
department of mental health or the department of mental
retardation and developmental disabilities, at a facility
certified by either of those departments as being qualified to
treat mental illness or mental retardation, at a public or private
community mental health or mental retardation facility, or by a
psychiatrist or another mental health or mental retardation
professional. The order may restrict the defendant's freedom of
movement as the court considers necessary. The prosecutor in the
defendant's case shall send to the chief clinical officer of the
hospital or facility, the managing officer of the institution, the
director of the program, or the person to which the defendant is
committed copies of relevant police reports and other background
information that pertains to the defendant and is available to the
prosecutor unless the prosecutor determines that the release of
any of the information in the police reports or any of the other
background information to unauthorized persons would interfere
with the effective prosecution of any person or would create a
substantial risk of harm to any person.
In determining placement alternatives, the court shall
consider the extent to which the person is a danger to the person
and to others, the need for security, and the type of crime
involved and shall order the least restrictive alternative
available that is consistent with public safety and treatment
goals. In weighing these factors, the court shall give preference
to protecting public safety.
(c) If the defendant is found incompetent to stand trial,
if the chief clinical officer of the hospital or facility, the
managing officer of the institution, the director of the program,
or the person to which the defendant is committed for treatment or
continuing evaluation and treatment under division (B)(1)(b) of
this
section determines that medication is necessary to restore
the
defendant's competency to stand trial, and if the defendant
lacks
the capacity to give informed consent or refuses medication,
the
chief clinical officer, managing officer, director, or person
to
which the defendant is committed for treatment or continuing
evaluation and treatment may petition the court for authorization
for the involuntary administration of medication. Upon receiving
the petition, the court shall hold a hearing on the petition and
may authorize the involuntary administration of medication. (C)(2) If the court finds that the defendant is incompetent
to
stand trial and that, even if the defendant is provided
with a
course of
treatment, there is not a substantial probability that
the
defendant will
become competent to stand trial within one
year,
and it appears
to the court, through a review of the report
of an examiner under
section 2945.371 of the Revised Code or
otherwise, that the
defendant is mentally ill or mentally
retarded
shall order the discharge of the defendant, unless upon motion of
the prosecutor or on its own motion, the court
may
cause
either
seeks to retain jurisdiction over the defendant pursuant to
section 2945.39 of the Revised Code or files an affidavit
to be
filed in the
probate court
under section
5122.11 or 5123.71
for
the civil commitment of the defendant pursuant to
Chapter 5122. or
5123. of the
Revised Code
alleging that the
defendant is a
mentally
ill person subject to
hospitalization by
court order or a
mentally
retarded person
subject to
institutionalization by court
order, as
defined in
sections
5122.01 and 5123.01 of the Revised
Code.
When
the
If an
affidavit is
filed
in the probate court, the
trial court
shall send to the probate
court
a copy
copies of
all
written
reports of the defendant's mental
condition that were
prepared
pursuant to section 2945.371 of the
Revised Code.
The
trial court may issue the temporary order of detention
that a
probate court may issue under section 5122.11 or 5123.71 of
the
Revised Code, to remain in effect until the probable cause or
initial hearing in the probate court. Further proceedings in the
probate court are
then civil proceedings governed by Chapter
5122.
or 5123. of the Revised Code. The chief clinical officer of the hospital or facility,
the
managing
officer of the institution, the director of the
program,
or the person to which the defendant is committed or
admitted
shall send, at least ten days prior to the discharge or
immediately upon learning of a change to voluntary status,
written
notice to the prosecutor of the date on which the
defendant will
be discharged or has been admitted on voluntary
status.
(D) If the court finds that the defendant is incompetent
to
stand trial and it appears to the court, through a review of
the
report of an examiner or otherwise, that the defendant is
mentally
ill or mentally retarded, but that there is a
substantial
probability the defendant will become competent
to stand trial
within one year if provided a course of treatment, and the
offense
is one for which the defendant could be incarcerated, if
convicted, the court shall order the defendant to undergo
treatment at a
facility operated by the department of mental
health or the
department of mental retardation and developmental
disabilities,
at a facility certified by the appropriate
department as qualified to
treat
mental illness or mental
retardation, or at a public or private
community mental health or
mental retardation facility, or it may
order private treatment by
a psychiatrist or other mental health
or mental retardation
professional. The order may restrict the
defendant's freedom of
movement, as the court considers
necessary. In determining
placement alternatives, the court
shall consider the dangerousness
of the defendant to self
and
others, the need for
security, and
the type of crime involved and
shall order the
least restrictive
alternative available that is
consistent with
public safety and
treatment goals.
(C) No defendant shall be required to undergo treatment,
including any continuing evaluation and treatment, under
this
division
(B)(1) of this section for longer than
the lesser of
fifteen
months or
one-third of the longest prison term that might
whichever of the following periods is applicable:
(1) One year, if the most serious offense with which the
defendant is charged is one of the following offenses:
(a) Aggravated murder, murder, or an offense of violence
for which a sentence of death or life imprisonment may
be imposed
for
conviction of; (b) An offense of violence that is a felony
or one-third of
the longest term of
imprisonment that might be imposed for
conviction
of
of the first or second degree;
(c) A conspiracy to commit, an attempt to commit, or
complicity in the commission of an offense described in division
(C)(1)(a) or (b) of this section if the conspiracy, attempt, or
complicity is a felony of the first or second degree.
(2) Six months, if the most serious offense with which the
defendant is charged is a felony other than a felony described in
division (C)(1) of this section;
(3) Sixty days, if the most serious offense with which the
defendant is charged is a misdemeanor
if
the defendant is found
guilty of
the most serious crime with
which the defendant was
charged at
the time of the hearing.
No
order issued
under this
division
shall remain in effect after the
indictment,
information,
or
complaint is dismissed. The court
shall notify
the prosecutor,
defense counsel, and the chief
clinical officer
of the facility or
the managing officer of the
institution or
facility at which, or
person with whom, the
defendant was ordered
to undergo treatment
pursuant to this
division whenever an
indictment, information, or
complaint against
a defendant is
dismissed and whenever the court
revokes an order
made under this
division. If the maximum time
during which an
order of the court
may be in effect expires, the
court, within
three days,
shall conduct another hearing
under
section 2945.37 of
the Revised Code
to determine if the
defendant
is competent to
stand trial, but at
the close of such a
hearing, a
disposition
shall be made under
division (A) of this
section or if
the
defendant is found
incompetent to stand trial,
disposition
shall
be made as under
division (C) of this section
of the first
or second degree;
(4) Thirty days, if the most serious offense with which the
defendant is charged is a misdemeanor of the third or fourth
degree, a minor misdemeanor, or an unclassified misdemeanor. (D) Any defendant
who is committed pursuant to this
division
section
shall
not
voluntarily admit
self
the defendant or be
voluntarily
admitted to a
hospital
or institution
pursuant to
section 5122.02
of the Revised
Code or to an
institution pursuant
to section, 5122.15, 5123.69, or 5123.76 of the
Revised Code. (E)
Except as otherwise provided in this division, a
defendant who is charged with an offense and is committed to a
hospital or other institution by the court under this section
shall not be granted unsupervised on-grounds movement, supervised
off-grounds movement, or nonsecured status. The court may grant a
defendant supervised off-grounds movement to obtain medical
treatment or specialized habilitation treatment services if the
person who supervises the treatment or the continuing evaluation
and treatment of the defendant ordered under division (B)(1)(a) of
this section informs the court that the treatment or continuing
evaluation and treatment cannot be provided at the hospital or the
institution to which the defendant is committed. The chief
clinical officer of the hospital or the managing officer of the
institution to which the defendant is committed or a designee of
either of those persons may grant a defendant movement to a
medical facility for an emergency medical situation with
appropriate supervision to ensure the safety of the defendant,
staff, and community during that emergency medical situation. The
chief clinical officer of the hospital or the managing officer of
the institution shall notify the court within twenty-four hours of
the defendant's movement to the medical facility for an emergency
medical situation under this division.
(F) The person who supervises the treatment
or continuing
evaluation and treatment of a defendant
ordered to undergo
treatment
or continuing evaluation and treatment under division
(D)(B)(1)(a) of this section
shall file a written report with the
court
and send copies to the
prosecutor and defense counsel at the
following times: (1)
After the first ninety days of treatment and after
each
one hundred eighty days of treatment thereafter; (2) Whenever the person believes the defendant
is
competent
to stand trial;
(3) Whenever the person believes that there is not a
substantial probability that the defendant will become competent
to stand trial;
(4) Fourteen
capable of understanding the nature and
objective of the proceedings against the defendant or of assisting
in the defendant's defense;
(2) For a felony offense, fourteen
days before expiration
of the maximum time
an
order issued under
for treatment as
specified in division
(D)(C) of this section
may be
in effect
and
fourteen days before the expiration of the maximum
time for
continuing evaluation and treatment as specified in
division
(B)(1)(a) of this section, and, for a misdemeanor offense,
ten
days
before the expiration of the maximum time for treatment,
as
specified in
that division.
(C) of this section; (3) At a minimum, after each six months of treatment;
(4) Whenever the person who supervises the treatment or
continuing evaluation and treatment of a defendant ordered under
division (B)(1)(a) of this section believes that there is not a
substantial probability that the defendant will become capable of
understanding the nature and objective of the proceedings against
the defendant or of assisting in the defendant's defense even if
the defendant is provided with a course of treatment. (G) A report
under division (F) of this section shall
contain the
examiner's findings
of the examiner, the
facts in
reasonable
detail on which the findings are based, and
the
examiner's opinion
of the examiner as to the defendant's
competence to
stand trial
capability of understanding the nature
and objective of the
proceedings against the defendant or of
assisting in the
defendant's defense. If, in the
examiner finds
that the defendant
is
incompetent to stand trial, the examiner
shall state an
opinion
in
the
report on the likelihood of the
defendant's becoming
competent
to
stand trial within one year
examiner's opinion, the
defendant remains incapable of
understanding the nature and
objective of the proceedings against
the defendant or of assisting
in the defendant's defense and there
is a substantial probability
that the defendant will become
capable of understanding the nature
and objective of the
proceedings against the defendant or of
assisting in the
defendant's defense if the defendant is provided
with a course of
treatment, if in the examiner's opinion the defendant remains
mentally ill or mentally
retarded, and if the maximum time for
treatment as specified in
division (C) of this section has not
expired, the report also
shall contain the examiner's
recommendation as to the least
restrictive treatment alternative
that is consistent with the
defendant's treatment needs for
restoration to competency and with
the safety of the community.
The court shall provide copies of the
report to the prosecutor and
defense counsel. (F) Within
(H) If a defendant is committed pursuant to
division (B)(1) of this section, within ten days after
receipt of a
report required by
division (E) of this section
the treating
physician of the defendant or the examiner of the defendant who is
employed or retained by the treating facility advises that there
is not a substantial probability that
the defendant will become
capable of understanding the nature and
objective of the
proceedings against the defendant or of assisting
in the
defendant's defense even if the defendant is provided with
a
course of treatment, within ten days after the expiration of the
maximum time for treatment as specified in division (C) of this
section, within ten days after the expiration of the maximum time
for continuing evaluation and treatment as specified in division
(B)(1)(a) of this section, within thirty days after a defendant's
request for a hearing that is made after six months of treatment,
or within thirty days after being advised by the treating
physician or examiner that the defendant is competent to stand
trial, whichever is the earliest, the court shall
hold a
conduct
another hearing
on
the issue of the competence of
to determine if
the defendant
is competent to stand trial, as
provided in section
2945.37 of the Revised Code.
and shall do whichever of the
following is applicable:
(1) If
at the
conclusion of the hearing the court finds
that the defendant is
competent to stand trial, the defendant
shall be proceeded
against
as provided by law.
If (2) If the court finds that the
defendant is
incompetent to
stand trial, but that there is a
substantial
probability
that the
defendant will become competent
to stand trial
before expiration
of
if the defendant is provided with a course of treatment, and
the
maximum time
limit specified for treatment
under
as specified
in
division
(D)(C) of this section
has not expired, the court
may
modify or
continue
in
effect
orders made at a previous hearing,
still subject to the
maximum
time that orders may be in effect, as
originally
established under
division (D) of this section. If,
after consideration of the examiner's recommendation, shall order
that treatment be continued, may change the facility or program at
which the treatment is to be continued, and shall specify whether
the treatment is to be continued at the same or a different
facility or program. (3) If the court
finds that the defendant
is
incompetent to
stand trial, if the defendant is charged with an
offense listed in
division (C)(1) of this section, and
if the
court finds that
there
is not a substantial
probability that the
defendant will
become
competent to stand
trial
within
even if the
defendant is provided
with a course of treatment, or if
the
maximum time
that
orders may
be in effect, as originally
established under
for treatment
relative to that offense as
specified in division
(D)(C) of this
section, the court shall
make a
disposition as under
division (C)
of this section. (G) The
has expired, further proceedings shall be as
provided in sections 2945.39, 2945.401, and 2945.402 of the
Revised Code.
(4) If the court finds that the defendant is
incompetent to
stand trial, if the most serious offense with which
the defendant
is charged is a misdemeanor or a felony other than a
felony listed
in division (C)(1) of this section, and if the court
finds that
there is not a substantial probability that the
defendant will
become competent to stand trial even if the
defendant is provided
with a course of treatment, or if the
maximum time for treatment
relative to that offense as specified
in division (C) of this
section has expired, the court shall
dismiss the indictment,
information,
or
complaint against
a
the
defendant
finally found
incompetent to
stand
trial under division
(C), (D), or (F) of this
section or
whenever
the prosecutor
notifies the court the
prosecutor
does not
intend
to
prosecute the
charges specified in
the indictment,
information,
or complaint.
A (H) A dismissal under
this division
(G) of this section is
not a
bar
to further
criminal proceedings
prosecution based on the
same conduct
unless
all of the following conditions are present:
(1) After a finding under division (C), (D), or (F) of
this
section that the defendant was incompetent to stand trial,
an
affidavit alleging that the defendant was mentally ill and
subject
to hospitalization by court order or mentally retarded
and subject
to institutionalization by court order was filed and
the defendant
either was found mentally ill or mentally
retarded
and subject
to
hospitalization or institutionalization by court
order, but was
later released, or was not so found. Whenever the
issue of
competence to stand trial is raised, but no finding
under division
(C), (D), or (F) of this section occurs because,
before such a
finding, the court dismisses the indictment,
information, or
complaint upon notice from the prosecutor that
the prosecutor does
not intend to prosecute the charges, this
division does not bar
further criminal proceedings based on the
same conduct, but
divisions (H)(2), (3), and (4) of this section
may bar further
proceedings, if the conditions they specify are
not present.
(2) The time the defendant has been involuntarily detained
for examination or treatment under Chapter 5122. or 5123. of the
Revised Code pursuant to the filing of an affidavit under
division
(C), (D), or (F) of this section and under this section
and
sections 2945.37 and 2945.371 of the Revised Code does not
exceed
one-third of the maximum prison term or term of
imprisonment the
defendant might have
received if convicted of the
most serious
charge that was
dismissed.
(3) Further criminal proceedings are not barred under
sections 2945.71 to 2945.73 of the Revised Code.
(4) The period of limitation for the offense committed has
not expired under section 2901.13 of the Revised Code, computed
without regard to division (H) of that section.
The court shall
discharge the defendant unless the court or prosecutor files an
affidavit in probate court for civil commitment pursuant to
Chapter 5122. or 5123. of the Revised Code. If an affidavit for
civil commitment is filed, the court may detain the defendant for
ten days pending civil commitment. All of the following
provisions apply to persons charged with a misdemeanor or a felony
other than a felony listed in division (C)(1) of this section who
are committed by the probate court subsequent to the court's or
prosecutor's filing of an affidavit for civil commitment under
authority of this division:
(a) The chief clinical officer of the hospital or facility,
the managing officer of the institution, the director of the
program, or the person to which the defendant is committed or
admitted shall do all of the following:
(i) Notify the prosecutor, in writing, of the discharge of
the defendant, send the notice at least ten days prior to the
discharge unless the discharge is by the probate court, and state
in the notice the date on which the defendant will be discharged;
(ii) Notify the prosecutor, in writing, when the defendant
is absent without leave or is granted unsupervised, off-grounds
movement, and send this notice promptly after the discovery of the
absence without leave or prior to the granting of the
unsupervised, off-grounds movement, whichever is applicable;
(iii) Notify the prosecutor, in writing, of the change of
the defendant's commitment or admission to voluntary status, send
the notice promptly upon learning of the change to voluntary
status, and state in the notice the date on which the defendant
was committed or admitted on a voluntary status.
(b) Upon receiving notice that the defendant will be
granted unsupervised, off-grounds movement, the prosecutor either
shall re-indict the defendant or promptly notify the court that
the prosecutor does not intend to prosecute the charges against
the defendant. (I) If a defendant is convicted of a crime and
sentenced
to
a
jail or workhouse, the defendant's
sentence
shall be reduced
by
the total
number of days the defendant is
confined for
examination
evaluation
to
determine the defendant's
competence to
stand trial
or
treatment under this section and
sections 2945.37
and 2945.371
of
the Revised Code
or by the total number of days
the defendant
is confined for evaluation to determine the
defendant's mental
condition at the time of the offense charged. (J) No statement made by a defendant in an examination or
hearing relating to the defendant's competence to stand
trial
shall be used
in evidence against the defendant on the issue
of
guilt in
any criminal
action.
(K) Each court of common pleas and municipal court shall
designate a permanent court officer or employee to file
affidavits
under division (C) of this section and section 2945.40
of the
Revised Code.
Sec. 2945.39. (A) If a defendant who
is charged with an
offense described in division
(C)(1) of section 2945.38 of the
Revised Code
is found incompetent to stand trial, after the
expiration of the maximum time
for treatment as specified in
division
(C) of that section
or after the court finds that
there
is not a substantial probability that the defendant will
become
competent to stand trial even if the defendant is provided
with a
course of treatment, one of the following
applies: (1) The court or the prosecutor may file an affidavit in
probate court for civil commitment of the defendant in the manner
provided in
Chapter 5122. or 5123. of the
Revised Code.
If the
court or
prosecutor files an affidavit for civil commitment,
the
court may detain the defendant for ten days pending civil
commitment. If the probate court commits the defendant
subsequent
to the court's or prosecutor's filing of an
affidavit for civil
commitment, the chief clinical officer of
the hospital or
facility, the managing officer of the
institution, the director of
the program, or the person to which
the defendant is committed or
admitted shall send to the
prosecutor the notices described in
divisions
(H)(4)(a)(i) to (iii) of section
2945.38 of the
Revised
Code within the periods of
time and under the
circumstances
specified in those divisions. (2) On the motion of the prosecutor or on its own motion,
the
court may retain jurisdiction over the defendant if, at a
hearing, the court
finds both of the following by clear and
convincing evidence: (a) The defendant committed the offense with which the
defendant is charged. (b) The defendant is a mentally ill person
subject to
hospitalization by court order or a mentally retarded person
subject
to institutionalization by court order. (B) In making its determination under
division (A)(2) of
this section as to whether
to retain jurisdiction over the
defendant, the court may consider all relevant
evidence,
including, but not limited to, any relevant psychiatric,
psychological, or medical testimony or reports, the acts
constituting the
offense charged, and any history of the defendant
that is relevant to the
defendant's ability to conform to the law. (C) If the court conducts a hearing as
described in division
(A)(2) of this section
and if the court does not make both
findings described in divisions
(A)(2)(a) and (b) of this section
by
clear and convincing evidence, the court shall
dismiss the
indictment, information, or complaint against the defendant. Upon
the dismissal, the court shall discharge the defendant unless the
court or
prosecutor files an affidavit in probate court for civil
commitment of the
defendant pursuant to
chapter
Chapter 5122. or
5123.
of the Revised
Code. If the court or prosecutor files
an
affidavit for civil commitment, the court may order that the
defendant be
detained for up to ten
days pending the civil
commitment.
If the probate court
commits the defendant subsequent
to the court's or prosecutor's
filing of an affidavit for civil
commitment, the chief clinical
officer of the hospital or
facility, the managing officer of the
institution, the director of
the program, or the person to which
the defendant is committed or
admitted shall send to the prosecutor
the notices described in
divisions
(H)(4)(a)(i) to (iii) of section
2945.38 of the
Revised
Code within the periods of
time and under the
circumstances
specified in those divisions.
A dismissal of
charges under this
division
is not a bar to
further criminal
proceedings based on the
same conduct. (D)(1) If the court conducts a hearing
as described in
division (A)(2) of this
section and if the court makes the
findings described in divisions
(A)(2)(a) and
(b) of this section
by clear and convincing evidence, the
court shall commit the
defendant to a hospital operated by the department of
mental
health, a facility operated by the department of mental
retardation and
developmental disabilities, or another medical or
psychiatric facility, as
appropriate. In determining the place
and nature of the commitment, the court
shall order the least
restrictive commitment alternative available that is
consistent
with public safety and the welfare of the defendant. In weighing
these
factors, the court shall give preference to protecting
public safety. (2) If a court makes a commitment of a defendant under
division
(D)(1) of this section, the prosecutor shall
send to the
place of commitment all reports of the defendant's current mental
condition and, except as otherwise provided in this division, any
other
relevant information, including, but not limited to, a
transcript of the
hearing held pursuant to division (A)(2) of
this
section, copies of relevant police reports, and copies of any
prior
arrest and conviction records that pertain to the defendant
and that the
prosecutor possesses. The prosecutor shall send
the
reports of the defendant's current mental condition in every case
of
commitment, and, unless the prosecutor determines that the
release of any of
the
other relevant information to unauthorized
persons would interfere with the
effective
prosecution of any
person or would create a substantial risk of harm to any
person,
the prosecutor also shall send the other relevant information.
Upon
admission of a defendant committed under division
(D)(1) of
this section, the place of
commitment shall send to the board of
alcohol, drug addiction, and mental
health services or the
community mental health board serving the county in
which the
charges against the defendant were filed a copy of all reports of
the
defendant's current mental condition and a copy of the other
relevant
information provided by the prosecutor under this
division, including, if
provided, a transcript of the hearing held
pursuant to division
(A)(2) of this section, the relevant police
reports, and the prior
arrest and conviction records that pertain
to the defendant and that the
prosecutor possesses. (3) If a court makes a commitment under division
(D)(1) of
this section, all further
proceedings shall be in accordance with
sections 2945.401 and 2945.402 of the
Revised Code.
Section 2. That existing sections 2945.371 and 2945.39 and
section 2945.38 of the Revised Code as it results
from Am. Sub.
S.B. 285 of the 121st General Assembly are hereby
repealed.
Section 3. This act presents section 2945.38 of the Revised
Code as it existed prior to its amendment by Am. Sub. S.B. 285 of
the 121st General Assembly. The revived version of that section
supersedes the version of that section repealed by Section 2 of
this act and omits and repeals all changes made to that section by
Am. Sub. S.B. 285 of the 121st General Assembly. The omission and
repeal of those changes is not intended to have any substantive
effect and is intended to present in this act the version of
section 2945.38 of the Revised Code that is currently effective.
The repeal of section 2945.38 of the Revised Code by Section 2 of
this act is to give effect to the holding of the Ohio Supreme
Court in
State v. Sullivan (2001), 90 Ohio St.3d 502, that section
2945.38 of the Revised Code, as amended by Am. Sub. S.B. 285 of
the 121st General Assembly, is unconstitutional.
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