A. No person shall be subject to any criminal procedures after the person is determined to be incompetent except as provided in Sections 1175.1 through 1175.8 of this title. The question of the incompetency of a person may be raised by the person, the attorney for the person whose competency is in question, or the district attorney, by an application for determination of competency. The application for determination of competency shall allege that the person is incompetent to undergo further proceedings, and shall state facts sufficient to raise a doubt as to the competency of the person. The court, at any time, may initiate a competency determination on its own motion, without an application, if the court has a doubt as to the competency of the person.

If the court so initiates such an application, it may appoint the district attorney for the purpose of proceeding with the application. If the district attorney opposes the application of the court, and by reason of a conflict of interest could not represent the court as applicant, then the court shall appoint private counsel. Said private counsel shall be reasonably compensated by the court fund.

B. A copy of the application for determination of competency and a notice, as hereinafter described, shall be served personally at least one (1) day before the first hearing on the application for a competency determination. The notice shall contain the following information:

1. The definition provided by Section 1175.1 of this title of competency and incompetency;

2. That, upon request, the hearing on the application may be conducted as a jury trial as provided in Section 1175.4 of this title;

3. That the petitioner and any witnesses identified in the application may offer testimony under oath at the hearings on the petition and that the defendant may not be called to testify against the defendant's will, unless the application is initiated by the defendant;

4. That if the person whose competency is in question does not have an attorney, the court will appoint an attorney for the person who shall represent the person until final disposition of the case;

5. That if the person whose competency is in question is indigent or poor, the court will pay the attorney fees; and

6. That the person whose competency is in question shall be afforded such other rights as are guaranteed by state and federal law and that such rights include a trial by jury, if demanded. The notice shall be served upon the person whose competency is in question, upon the person's father, mother, husband, or wife or, in their absence, someone of the next of kin, of full age, if any said persons are known to be residing within the county, and upon any of said relatives residing outside of the county, and within the state, as may be ordered by the court, and also upon the person with whom the person whose competency is in question may reside, or at whose house the person may be. The person making such service shall make affidavit of the same and file such notice, with proof of service, with the district court. This notice may be served in any part of this state.

C. Any criminal proceedings against a person whose competency is in question shall be suspended pending the determination of the competency of the person.

Historical Data

Laws 1980, HB 1836, c. 336, § 2, emerg. eff. June 25, 1980; Amended by Laws 1983, HB 1337, c. 104, § 1, eff. November 1, 1983; Amended by Laws 2000, SB 1601, c. 421, § 3, eff. November 1, 2000 (superseded document available).