§ 16-8.5-102 — Competency to proceed - how and when raised

Colorado § 16-8.5-102

• Jurisdiction: Colorado
• Title 16: Criminal
• Art.: Competency to Proceed

Text

(1) While a
defendant is incompetent to proceed, the defendant must not be tried or
sentenced, nor shall the court consider or decide pretrial matters that are not
susceptible of fair determination without the personal participation of the
defendant. However, a determination that a defendant is incompetent to proceed
does not preclude the furtherance of the proceedings by the court to consider and
decide matters, including a preliminary hearing and motions, that are susceptible of
fair determination prior to trial and without the personal participation of the
defendant. Those proceedings may be later reopened if, in the discretion of the
court, substantial new evidence is discovered after and as a result of the
defendant's restoration to competency.

(2) The question of a defendant's competency to proceed must be raised in
only one of the following manners:

(a) If the judge has reason to believe that the defendant is incompetent to
proceed, the judge shall suspend the proceeding and determine the competency or
incompetency of the defendant pursuant to section 16-8.5-103;

(b) If either the defense or the prosecution has reason to believe that the
defendant is incompetent to proceed, either party may file a motion in advance of
the commencement of the particular proceeding. A motion to determine
competency shall be in writing and contain a certificate of counsel stating that the
motion is based on a good faith doubt that the defendant is competent to proceed.
The motion must set forth the specific facts that have formed the basis for the
motion. The court must seal the motion. If the motion is made by the prosecution,
the prosecution shall provide the defense a copy of the motion. If the motion is
made by the defense, the defense shall provide the prosecution notice of the filing
of the motion at the time of filing, and if the defense requests a hearing, the
defense shall provide the motion to the prosecution at the time the hearing is
requested. The motion may be filed after the commencement of the proceeding if,
for good cause shown, the defendant's mental disability or developmental disability
was not known or apparent before the commencement of the proceeding.

(c) Repealed.

(d) By the public defender liaison, as described in section 21-1-104 (6), or an
attorney representing the offender in a parole proceeding.

(3) Notwithstanding any provision of this article 8.5 to the contrary, the
question of whether a convicted person is mentally incompetent to be executed
must be raised and determined pursuant to part 14 of article 1.3 of title 18.

(4) If a defendant is eligible for referral to the bridges wraparound care
program pursuant article 8.6 of this title 16, the court may ask the parties whether
the defendant should be referred for participation in the program. With the
agreement of the parties, the court may delay making determinations regarding the
defendant's competency to allow a bridges wraparound care coordinator to
conduct an initial intake of the defendant pursuant to section 16-8.6-108 to
determine whether the bridges wraparound care program is appropriate for the
defendant.

Legislative History

Source: L. 2008: Entire article added, p. 1839, � 2, effective July 1. L. 2018: (2)(c) amended and (2)(d) added, (HB 18-1109), ch. 139, p. 914, � 4, effective April 23. L. 2019: IP(2) and (2)(d) amended and (2)(c) repealed, (SB 19-223), ch. 227, p. 2275, � 2, effective July 1. L. 2024: (1), (2)(a), (2)(b), (2)(d), and (3) amended, (HB 24-1034), ch. 372, p. 2500, � 1, effective June 4; (4) added, (HB 24-1355), ch. 471, p. 3312, � 10, effective August 7.