FOR AN ACT ENTITLED, An Act to revise certain provisions regarding restoration to competency for criminal defendants.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
    Section 1. That § 23A-10A-4 be amended to read:
    23A-10A-4. If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or developmental disability, or other conditions set forth in § 23A-10A-1, rendering him the defendant mentally incompetent to the extent that he the defendant is unable to understand the nature and consequences of the proceedings against him the defendant or to assist properly in his or her defense, the court shall order the defendant to be placed in a treatment program under the direction of an approved facility or commit the defendant to the custody of an approved facility having residential capability. The facility shall have custody and treat the defendant shall be treated for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he the defendant will attain the capacity to permit the trial to proceed. No commitment may be made to an approved facility which that

is not owned by the state without first obtaining the consent of the administrator of the privately owned facility.
    Section 2. That § 23A-10A-4.1 be amended to read:
    23A-10A-4.1. If the director of the facility in which where the defendant is being treated pursuant to § 23A-10A-4 determines that the defendant has recovered to such an extent that he or she the defendant is able to understand the nature and consequences of the proceedings against him the defendant and to assist properly in his or her defense, he the director shall promptly file a certificate to that effect with the clerk of the court that ordered the placement or commitment. The court shall send a copy of the certificate to the defendant's counsel and to the prosecuting attorney. The court shall hold a hearing, conducted pursuant to under the provisions of § 23A-46-3, to determine the competency of the defendant. If, after the hearing, the court finds by a preponderance of the evidence that the defendant has recovered to such an extent that he the defendant is capable of understanding the nature and consequences of the proceedings against him the defendant and to assist properly in his or her defense, the court shall order his the defendant's immediate discharge from the facility in which he where the defendant is hospitalized, if applicable, and shall set the date for trial. Upon discharge, the defendant is subject to the provisions of chapter 23A-43. If, after the hearing, the court does not find by a preponderance of the evidence that the defendant has recovered to such an extent that he the defendant is capable of understanding the nature and consequences of the proceedings against him the defendant and to assist properly in his or her defense, the court shall order him the defendant to again be placed in an approved facility for a term consistent with this section and §§ 23A-10A-14 and 23A-10A-15.
    Section 3. That § 23A-10A-14 be amended to read:
    23A-10A-14. After four months of evaluation, pursuant to § 23A-10A-4, if the facility has

not certified that the defendant is competent to proceed, pursuant to § 23A-10A-4.1, the director of the approved facility shall issue a report to the circuit court evaluating whether there is a substantial probability that within the next year the defendant will become competent to proceed. After receipt of that report by the circuit court, the court shall set a time for hearing to determine whether or not the defendant is reasonably likely to become competent to proceed within the next year.

    If the court finds there is a reasonable likelihood that the defendant will become competent to proceed within the next year, it the court shall order the defendant to be placed in a treatment program under the direction of an approved facility or committed to an approved facility for an additional specified period of time, not to exceed one year, or until the director of the facility issues a certificate of recovery pursuant to § 23A-10A-4.1.

    If the court finds there is no reasonable likelihood that the defendant will become competent to proceed within one year, it the court shall review the defendant's condition to determine appropriate placement and order the defendant to be placed in a treatment program under the direction of an approved facility or committed to an approved facility for a term consistent with § 23A-10A-15.

    If the one year provided for in this section has run without a certificate of recovery being issued, the director of the approved facility shall notify the court that one year has expired since the order of detention, and the court shall order a hearing to review the defendant's condition to determine appropriate placement and order the defendant's placement in a treatment program under the direction of an approved facility or commitment to an approved facility for a term consistent with § 23A-10A-15.
    Section 4. That § 23A-10A-15 be amended to read:
    23A-10A-15. If the most serious charge against the defendant is a Class A or B felony, the

order of detention shall be for any period of time deemed reasonable by the court or until the charges have been dismissed by the prosecution. The order for detention may not exceed the maximum penalty allowable for the most serious charge facing the defendant. Upon expiration of the order of detention, or after the expiration of the longest time the defendant could have been sentenced, whichever is longest, the criminal charges against the defendant shall be dismissed. If the prosecutor believes that there is probable cause to believe that the defendant is a danger to himself, herself, or others at the time of such dismissal, he the prosecutor may file a petition pursuant to chapter 27A-10 or 27A-11A or Title 27B, for further treatment.

    Every twelve months thereafter the director of the approved facility shall notify the court if the defendant is still in a treatment program under the direction of an approved facility or in the approved facility pursuant to this chapter, and the circuit court shall hold a hearing to review any order of detention to determine if the defendant has become competent to proceed.
    Section 5. That chapter 23A-10A be amended by adding a NEW SECTION to read:

    The term, treatment program, as used in this chapter, means a program under the direction of an approved facility that is designed to restore the defendant to competency in an inpatient, outpatient, or jail-based setting.