Chapter 931 Oregon Laws 1999
Session Law
AN ACT
HB 2436
Relating to fitness to
proceed; creating new provisions; and amending ORS 161.370.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 161.370 is amended to read:
161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If neither the
prosecuting attorney nor counsel for the defendant contests the finding of the
report filed by a psychiatrist or psychologist under ORS 161.365, the court may
make the determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the report is
received in evidence upon such hearing, the party who contests the finding
thereof shall have the right to summon and to cross-examine any psychiatrist or
psychologist who submitted the report and to offer evidence upon the issue.
Other evidence regarding the defendant's fitness to proceed may be introduced
by either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the proceeding against the defendant shall be suspended, except as
provided in subsection [(12)] (13) of this section, and the court
shall commit the defendant to the custody of the superintendent of a state
mental hospital or other treatment
facility designated by the Mental Health and Developmental Disability
Services Division or shall release the defendant on supervision for so long as
such unfitness shall endure. The court may release the defendant on supervision
if it determines that care other than commitment for incapacity to stand trial
would better serve the defendant and the community. It may place conditions
which it deems appropriate on the release, including the requirement that the
defendant regularly report to the Mental Health and Developmental Disability
Services Division or a community mental health and developmental disabilities
program for examination to determine if the defendant has regained capacity to
stand trial. When the court, on its own motion or upon the application of the
superintendent of the hospital or other
treatment facility in which the defendant is committed, a person examining
the defendant as a condition of release on supervision, or either party,
determines, after a hearing, if a hearing is requested, that the defendant has
regained fitness to proceed, the proceeding shall be resumed. If, however, the
court is of the view that so much time has elapsed since the commitment or
release of the defendant on supervision that it would be unjust to resume the
criminal proceeding, the court on motion of either party may dismiss the charge
and may order the defendant to be discharged or cause a proceeding to be
commenced forthwith under ORS 426.070 to 426.170 or 427.235 to 427.290.
(3) When a court
determines that a defendant lacks fitness to proceed and commits the defendant
to the custody of the superintendent of a state mental hospital or other
treatment facility under subsection (2) of this section, the defendant shall be
transported to the hospital or treatment facility as soon as practicable.
Transport shall be completed within seven days after the court's determination
unless doing so would jeopardize the health or safety of the defendant or
others. While awaiting transport, the defendant shall receive the custody, care
and treatment necessary to ensure the defendant's health and safety.
[(3)] (4) The superintendent shall cause the
defendant to be evaluated within 60 days from the defendant's delivery into the
superintendent's custody, for the purpose of determining whether there is a
substantial probability that, in the foreseeable future, the defendant will
have the capacity to stand trial.
[(4)] (5) In addition, the superintendent
shall:
(a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or will never have
the capacity to stand trial.
(b) Within 90 days of the defendant's delivery into the
superintendent's custody, notify the committing court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the capacity to stand
trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand trial. If such
a probability exists, the superintendent shall give the court an estimate of
the time in which the defendant, with appropriate treatment, is expected to
gain or regain capacity.
[(5)] (6) If the superintendent determines
that there is a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless the court
otherwise orders, the defendant shall remain in the superintendent's custody
where the defendant shall receive treatment designed for the purpose of
enabling the defendant to gain or regain capacity. In keeping with the notice
requirement under subsection [(4)(b)]
(5)(b) of this section, the
superintendent shall, for the duration of the defendant's period of commitment,
submit a progress report to the committing court, concerning the defendant's
capacity or incapacity, at least once every 180 days as measured from the date
of the defendant's delivery into the superintendent's custody.
[(6)] (7) A defendant who remains committed
under subsection [(5)] (6) of this section shall be
discharged within a period of time that is reasonable for making a
determination concerning whether or not, and when, the defendant may gain or
regain capacity. However, regardless of the number of charges with which the
defendant is accused, in no event shall the defendant be committed for longer
than whichever of the following, measured from the defendant's initial custody
date, is shorter:
(a) Three years; or
(b) A period of time equal to the maximum sentence the court
could have imposed if the defendant had been convicted.
[(7)] (8) The superintendent shall notify
the committing court of the defendant's impending discharge 30 days before the
date on which the superintendent is required to discharge the defendant under
subsection [(6)] (7) of this section.
[(8)] (9) When the committing court receives
a notice from the superintendent under either subsection [(4)] (5) or [(7)]
(8) of this section[,] concerning
the defendant's progress or lack thereof, the committing court shall determine
after a hearing, if a hearing is requested, whether the defendant presently has
the capacity to stand trial.
[(9)] (10) If under subsection [(8)]
(9) of this section[,] the court
determines that the defendant lacks the capacity to stand trial, the court
shall further determine whether there is a substantial probability that the
defendant, in the foreseeable future, will gain or regain the capacity to stand
trial and whether the defendant is entitled to discharge under subsection [(6)]
(7) of this section. If the court determines that there is no substantial
probability that the defendant, in the foreseeable future, will gain or regain
the capacity to stand trial or that the defendant is entitled to discharge
under subsection [(6)] (7) of this section, the court shall
dismiss, without prejudice, all charges against the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070 or
427.235 to 427.290.
[(10)] (11) All notices required under this
section shall be filed with the clerk of the court and delivered to both the
district attorney and the counsel for the defendant.
[(11)] (12) If the defendant regains fitness
to proceed, the term of any sentence received by the defendant for conviction
of the crime charged shall be reduced by the amount of time the defendant was
committed under this section to the custody of a state mental hospital or other treatment facility designated
by the Mental Health and Developmental Disability Services Division.
[(12)] (13) The fact that the defendant is
unfit to proceed does not preclude any objection through counsel and without
the personal participation of the defendant on the grounds that the indictment
is insufficient, that the statute of limitations has run, that double jeopardy
principles apply or upon any other ground at the discretion of the court which
the court deems susceptible of fair determination prior to trial.
[(13)] (14) As used in this section,
"superintendent" means the superintendent of [the] a state mental
hospital [of] or other treatment facility designated by the Mental Health and
Developmental Disability Services Division to which the defendant has been
committed.
SECTION 2.
ORS 161.370, as amended by section 1 of this 1999 Act, is amended to read:
161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If neither the
prosecuting attorney nor counsel for the defendant contests the finding of the
report filed by a psychiatrist or psychologist under ORS 161.365, the court may
make the determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the report is
received in evidence upon such hearing, the party who contests the finding
thereof shall have the right to summon and to cross-examine any psychiatrist or
psychologist who submitted the report and to offer evidence upon the issue.
Other evidence regarding the defendant's fitness to proceed may be introduced
by either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the proceeding against the defendant shall be suspended, except as
provided in subsection [(13)] (12) of this section, and the court
shall commit the defendant to the custody of the superintendent of a state
mental hospital [or other treatment
facility] designated by the Mental Health and Developmental Disability
Services Division or shall release the defendant on supervision for so long as
such unfitness shall endure. The court may release the defendant on supervision
if it determines that care other than commitment for incapacity to stand trial
would better serve the defendant and the community. It may place conditions
which it deems appropriate on the release, including the requirement that the
defendant regularly report to the Mental Health and Developmental Disability
Services Division or a community mental health and developmental disabilities
program for examination to determine if the defendant has regained capacity to
stand trial. When the court, on its own motion or upon the application of the
superintendent of the hospital [or other
treatment facility] in which the defendant is committed, a person examining
the defendant as a condition of release on supervision, or either party,
determines, after a hearing, if a hearing is requested, that the defendant has
regained fitness to proceed, the proceeding shall be resumed. If, however, the
court is of the view that so much time has elapsed since the commitment or
release of the defendant on supervision that it would be unjust to resume the
criminal proceeding, the court on motion of either party may dismiss the charge
and may order the defendant to be discharged or cause a proceeding to be
commenced forthwith under ORS 426.070 to 426.170 or 427.235 to 427.290.
[(3) When a court
determines that a defendant lacks fitness to proceed and commits the defendant
to the custody of the superintendent of a state mental hospital or other
treatment facility under subsection (2) of this section, the defendant shall be
transported to the hospital or treatment facility as soon as practicable.
Transport shall be completed within seven days after the court's determination
unless doing so would jeopardize the health or safety of the defendant or
others. While awaiting transport, the defendant shall receive the custody, care
and treatment necessary to ensure the defendant's health and safety.]
[(4)] (3) The superintendent shall cause the
defendant to be evaluated within 60 days from the defendant's delivery into the
superintendent's custody, for the purpose of determining whether there is a
substantial probability that, in the foreseeable future, the defendant will
have the capacity to stand trial.
[(5)] (4) In addition, the superintendent
shall:
(a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or will never have
the capacity to stand trial.
(b) Within 90 days of the defendant's delivery into the
superintendent's custody, notify the committing court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the capacity to stand
trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand trial. If such
a probability exists, the superintendent shall give the court an estimate of
the time in which the defendant, with appropriate treatment, is expected to
gain or regain capacity.
[(6)] (5) If the superintendent determines
that there is a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless the court
otherwise orders, the defendant shall remain in the superintendent's custody
where the defendant shall receive treatment designed for the purpose of
enabling the defendant to gain or regain capacity. In keeping with the notice
requirement under subsection [(5)(b)]
(4)(b) of this section, the
superintendent shall, for the duration of the defendant's period of commitment,
submit a progress report to the committing court, concerning the defendant's
capacity or incapacity, at least once every 180 days as measured from the date
of the defendant's delivery into the superintendent's custody.
[(7)] (6) A defendant who remains committed
under subsection [(6)] (5) of this section shall be
discharged within a period of time that is reasonable for making a
determination concerning whether or not, and when, the defendant may gain or
regain capacity. However, regardless of the number of charges with which the
defendant is accused, in no event shall the defendant be committed for longer
than whichever of the following, measured from the defendant's initial custody
date, is shorter:
(a) Three years; or
(b) A period of time equal to the maximum sentence the court
could have imposed if the defendant had been convicted.
[(8)] (7) The superintendent shall notify
the committing court of the defendant's impending discharge 30 days before the
date on which the superintendent is required to discharge the defendant under
subsection [(7)] (6) of this section.
[(9)] (8) When the committing court receives
a notice from the superintendent under either subsection [(5)] (4) or [(8)]
(7) of this section concerning the defendant's progress or lack thereof,
the committing court shall determine after a hearing, if a hearing is
requested, whether the defendant presently has the capacity to stand trial.
[(10)] (9) If under subsection [(9)]
(8) of this section the court determines that the defendant lacks the
capacity to stand trial, the court shall further determine whether there is a
substantial probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial and whether the defendant is
entitled to discharge under subsection [(7)] (6) of this section. If the court
determines that there is no substantial probability that the defendant, in the
foreseeable future, will gain or regain the capacity to stand trial or that the
defendant is entitled to discharge under subsection [(7)] (6) of this
section, the court shall dismiss, without prejudice, all charges against the
defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070 or
427.235 to 427.290.
[(11)] (10) All notices required under this
section shall be filed with the clerk of the court and delivered to both the
district attorney and the counsel for the defendant.
[(12)] (11) If the defendant regains fitness
to proceed, the term of any sentence received by the defendant for conviction
of the crime charged shall be reduced by the amount of time the defendant was
committed under this section to the custody of a state mental hospital [or other treatment facility] designated
by the Mental Health and Developmental Disability Services Division.
[(13)] (12) The fact that the defendant is
unfit to proceed does not preclude any objection through counsel and without
the personal participation of the defendant on the grounds that the indictment
is insufficient, that the statute of limitations has run, that double jeopardy
principles apply or upon any other ground at the discretion of the court which
the court deems susceptible of fair determination prior to trial.
[(14)] (13) As used in this section,
"superintendent" means the superintendent of [a] the state mental
hospital [or other treatment facility
designated by] of the Mental
Health and Developmental Disability Services Division to which the defendant
has been committed.
SECTION 3. The amendments to ORS 161.370 by section 2
of this 1999 Act become operative January 1, 2002.
Approved by the Governor
August 4, 1999
Filed in the office of
Secretary of State August 4, 1999
Effective date October 23,
1999
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