CHAPTER 23A-10A
INQUIRY INTO DEFENDANT'S MENTAL COMPETENCY TO PROCEED
23A-10A-1 Definition of mental incompetency.
23A-10A-2 Incompetent person cannot be tried, sentenced or punished.
23A-10A-3 Hearing on mental condition--Mental examination and report.
23A-10A-4 Commitment--Finding required--Duration.
23A-10A-4.1 Recovery of defendant--Certificate--Discharge pending hearing--Notice--Hearing.
23A-10A-4.2 Findings as to mental competence not prejudicing insanity defense--Inadmissible.
23A-10A-5 Suspension of proceedings pending determination of defendant's competency.
23A-10A-6 Rules governing competency proceedings.
23A-10A-6.1 Burden and standard of proof.
23A-10A-7 23A-10A-7 to 23A-10A-9. Repealed by SL 1985, ch 192, §§ 42 to 44.
23A-10A-10 Expense of maintenance of defendant committed.
23A-10A-11 23A-10A-11, 23A-10A-12. Repealed by SL 1985, ch 192, §§ 45, 46.
23A-10A-13 Approved facility defined.
23A-10A-13.1 Restoration to competency program defined.
23A-10A-14 Facility's report--Length of commitment determined--Review after one year--Dismissal on court finding.
23A-10A-15 Length of detention for Class A, B, or C felony.
23A-10A-16 Time in approved facility credited to term of imprisonment.
23A-10A-17 Repealed.
23A-10A-1. Definition of mental incompetency.
The term, "mentally incompetent to proceed," as used in this chapter, means the condition of a person who is suffering from a mental disease, developmental disability, as defined in § 27B-1-18, or psychological, physiological, or etiological condition rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
Source: SL 1978, ch 175, § 2; SDCL Supp, § 23-38-1.1; SL 1985, ch 192, § 47; SL 1991, ch 199, § 1.
23A-10A-2. Incompetent person cannot be tried, sentenced or punished.
A person cannot be tried, sentenced, or punished for any public offense while he is mentally incompetent to proceed.
Source: CCrimP 1877, § 514; CL 1887, § 7564; RCCrimP 1903, § 543; RC 1919, § 4793; SDC 1939 & Supp 1960, § 34.2001; SDCL, § 23-38-1; SL 1978, ch 175, § 1.
23A-10A-3. Hearing on mental condition--Mental examination and report.
At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the prosecuting attorney may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or developmental disability, or other conditions set forth in § 23A-10A-1, rendering the defendant mentally incompetent to the extent that the defendant is unable to understand the nature and consequences of the proceeding against the defendant or to assist properly in the defendant's defense. Prior to the date of hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of §§ 23A-46-1 and 23A-46-2. The examination shall be completed within twenty-one days of the court order, unless for good cause the court grants a continuance. The hearing shall be conducted pursuant to the provisions of § 23A-46-3.
Source: SL 1978, ch 175, § 4; SDCL Supp, § 23-38-2.1; SL 1985, ch 192, § 38; SL 1991, ch 199, § 4; SL 2017, ch 109, § 16.
23A-10A-4. Commitment--Finding required--Duration.
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 the defendant mentally incompetent to the extent that the defendant is unable to understand the nature and consequences of the proceedings against the defendant or to assist properly in the defense, the court shall order the defendant to be placed in a restoration to competency program under the direction of an approved facility, commit the defendant to the custody of an approved facility having residential capability, or order the defendant to be placed on outpatient status for restoration to competency if the court makes a written finding that the defendant is not considered to be a danger to the health and safety of others and is otherwise eligible for bond. A defendant placed on outpatient status is subject to the provisions of chapter 23A-43. The defendant shall be treated for 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 the defendant will attain the capacity to permit the trial to proceed. No commitment may be made to an approved facility that is not owned by the state without first obtaining the consent of the administrator of the privately owned facility.
Source: SDC 1939 & Supp 1960, § 34.2002; SDCL, § 23-38-2; SL 1978, ch 175, § 3; SL 1985, ch 192, § 39; SL 1991, ch 199, § 5; SL 2020, ch 97, § 1.
23A-10A-4.1. Recovery of defendant--Certificate--Discharge pending hearing--Notice--Hearing.
If the director of the facility under which the defendant is being treated in accordance with § 23A-10A-4 determines that the defendant has recovered to an extent that the defendant is able to understand the nature and consequences of the proceedings against the defendant and to assist properly in the defense, the director shall promptly file a certificate to that effect with the clerk of the court that ordered the placement or commitment, and the defendant shall be discharged from the facility where the defendant is hospitalized, if applicable. Upon discharge, the defendant is subject to the provisions of chapter 23A-43.
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 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 an extent that the defendant is capable of understanding the nature and consequences of the proceedings against the defendant and to assist properly in the defense, the court shall set the date for trial. If, after the hearing, the court does not find by a preponderance of the evidence that the defendant has recovered to an extent that the defendant is capable of understanding the nature and consequences of the proceedings against the defendant and to assist properly in the defense, the court shall order the defendant to be placed in a restoration to competency program under the direction of an approved facility, in an approved facility, or on outpatient status for restoration to competency if the court makes a written finding that the defendant is not considered to be a danger to the health and safety of others and is otherwise eligible for bond for a term consistent with this section and §§ 23A-10A-14 and 23A-10A-15.
Source: SL 1985, ch 192, § 40; SL 1991, ch 199, § 6; SL 2020, ch 97, § 2; SL 2023, ch 78, § 1.
23A-10A-4.2. Findings as to mental competence not prejudicing insanity defense--Inadmissible.
A finding by the court that the defendant is mentally competent to stand trial may not prejudice the defendant in raising the issue of his insanity as a defense to the offense charged, and may not be admissible as evidence in a trial for the offense charged.
Source: SL 1985, ch 192, § 41.
23A-10A-5. Suspension of proceedings pending determination of defendant's competency.
The trial of the indictment or information or the sentencing, as the case may be, shall be suspended until the question of mental competency is determined by the court.
Source: SDC 1939 & Supp 1960, § 34.2002; SDCL, § 23-38-3; SL 1978, ch 175, § 5; SL 1991, ch 199, § 10; SL 1991, ch 200.
23A-10A-6. Rules governing competency proceedings.
The proceedings on the question of mental competency shall be conducted according to the rules of criminal procedure.
Source: SDC 1939 & Supp 1960, § 34.2003; SDCL, § 23-38-4; SL 1978, ch 175, § 6.
23A-10A-6.1. Burden and standard of proof.
If the defendant, state, or court asserts that a defendant is mentally incompetent to proceed, the state has the burden of proving the mental competence of the defendant by a preponderance of the evidence.
Source: SL 1984, ch 178; SL 1988, ch 190.
23A-10A-10. Expense of maintenance of defendant committed.
The expenses of keeping a defendant in the approved facility is chargeable and collectible in the same manner as when a mentally ill person not charged with a public offense is committed thereto.
Source: SDC 1939 & Supp 1960, § 34.2005; SDCL, § 23-38-8; SL 1978, ch 175, § 10; SL 1991, ch 199, § 12.
23A-10A-13. Approved facility defined.
The term, approved facility, as used in this chapter, means the Human Services Center; the state developmental centers; a community support provider; a mental health center, as defined by subdivision 27A-1-1(13), or any other facility approved by the Department of Human Services or the Department of Social Services for placement or treatment of mentally ill or developmentally disabled persons.
Source: SL 1991, ch 199, § 2; SL 2009, ch 138, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 134, eff. Apr. 12, 2011.
23A-10A-13.1 . Restoration to competency program defined.
The term, restoration to competency program, as used in this chapter, means a program under the direction of an approved facility which is designed to restore the defendant to competency in an inpatient, outpatient, or jail-based setting. The term includes a county jail upon the concurrence of the county sheriff to provide restoration to competency in the jail under the direction of an approved facility.
Source: SL 2020, ch 97, § 3.
23A-10A-14. Facility's report--Length of commitment determined--Review after one year--Dismissal on court finding.
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 the defendant will become competent to proceed and whether there is a substantial probability that it will occur within the next year. After receipt of that report by the circuit court, the court shall set a time for hearing to determine whether there is a substantial probability that the defendant will become competent to proceed and whether there is a substantial probability that it will occur within the next year.
If the court finds there is a substantial probability that the defendant will become competent to proceed within the next year, the court shall order the defendant to be placed in a restoration to competency program under the direction of an approved facility, committed to an approved facility, or placed on outpatient status for restoration to competency if the defendant is not considered to be a danger to the health and safety of others 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 substantial probability that the defendant will become competent to proceed within one year but there is a substantial probability that the defendant will become competent in the foreseeable future, the court shall review the defendant's condition to determine appropriate placement and order the defendant to be placed in a restoration to competency program under the direction of an approved facility, committed to an approved facility, or to be placed on outpatient status for restoration to competency if the defendant is not considered to be a danger to the health and safety of others 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 restoration to competency program under the direction of an approved facility, commitment to an approved facility, or placement on outpatient status for restoration to competency if the defendant is not considered to be a danger to the health and safety of others for a term consistent with § 23A-10A-15.
If the court finds that there is no substantial probability that the defendant will become competent to proceed in the foreseeable future, the court shall dismiss the criminal charges against the defendant. If the director of the facility determines there is probable cause to believe that the defendant is a danger to self or others if the defendant is released, the director shall include the basis for that determination in the report and may recommend that the prosecutor file a petition for civil commitment proceedings.
Source: SL 1991, ch 199, § 7; SL 2020, ch 97, § 4; SL 2021, ch 107, § 1.
23A-10A-15. Length of detention for Class A, B, or C felony.
If the most serious charge against the defendant is a Class A, B, or C felony, the order shall be for a term of years the court determines is reasonable or until the charges have been dismissed by the prosecution. The order may not exceed the maximum penalty allowable for the most serious charge facing the defendant. Upon expiration of the order of detention, the criminal charges against the defendant shall be dismissed. If the prosecutor believes there is probable cause to believe that the defendant is a danger to self or to others at the time of dismissal, the prosecutor may file a petition in accordance with chapter 27A-10 or 27A-11A or title 27B, for further restoration to competency.
Every twelve months thereafter, the director of the approved facility shall notify the court if the defendant is still in a restoration to competency 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.
Source: SL 1991, ch 199, §§ 8, 9; SL 2020, ch 97, § 5; SL 2021, ch 107, § 2.
23A-10A-16. Time in approved facility credited to term of imprisonment.
Time spent by a defendant in a restoration to competency program or an approved facility pursuant to this chapter, shall be credited to the term of imprisonment, if any, for which the defendant is sentenced in the criminal case which was suspended under § 23A-10A-5.
Source: SL 1991, ch 199, § 11; SL 2020, ch 97, § 6.
