Colorado § 16-8.5-109 - Competency hearing - procedure after determination of competency or incompetency - mandatory dismissal - refile of charges.

§ 16-8.5-109. Competency hearing - procedure after determination of competency or incompetency - mandatory dismissal - refile of charges.

(1) Competency hearing.

(a) If a party makes a timely request for a competency hearing pursuant to section 16-8.5-108, the court shall grant the request for a competency hearing.

(b) At a competency hearing, the party asserting the incompetency of the defendant has the burden of submitting evidence and the burden of proof by a preponderance of the evidence.

(2) Competent to proceed. If the final determination made pursuant to section 16-8.5-103 is that the defendant is competent to proceed, the court shall order that the suspended proceeding continue or, if a mistrial was declared, shall reset the case for trial at the earliest possible date.

(3) Referral to wraparound care program or restoration services. If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and the defendant is eligible for referral to the bridges wraparound care program pursuant to 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 ordering restoration services for the defendant 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, or, except as provided in subsection (4) of this section, the court may order restoration services pursuant to section 16-8.5-110.

(4) Mandatory dismissal of certain charges after finding of incompetency. The court shall dismiss the charges against the defendant if the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and if a defendant's highest charged offense is a class 2 misdemeanor; a petty offense; a drug misdemeanor; a traffic infraction; a misdemeanor traffic offense; an offense that constitutes an unclassified misdemeanor without specification pursuant to section 18-1.3-504; or an offense that constitutes a denominated misdemeanor and no penalty is fixed in statute pursuant to section 18-1.3-505, but not a misdemeanor pursuant to part 13 of article 4 of title 42 or any offense charged pursuant to section 42-4-1402 (2)(c).

Source: L. 2026: Entire article amended with relocations, (SB 26-149), ch. 142, p. 694, § 1, effective May 21.

Editor's note: (1) The provisions of this section are similar to provisions of several former sections as they existed prior to 2026. For a detailed comparison, see the comparative tables located in the back of the index.

(2) Subsection (1) was relocated to § 16-8.5-102 (3) in 2026.

(3) Subsection (2) was relocated to § 16-8.5-108 (3) in 2026.

(4) Subsection (3) was relocated to § 16-8.5-108 (2)(b) in 2026.

ANNOTATION

Annotator's note. Since § 16-8.5-109 is similar to § 16-8.5-111 as it existed prior to its 2024 repeal and reenactment and to repealed § 16-8-112, relevant cases construing those provisions have been included in the annotations to this section.

Purpose of section. This section considers the interests of both society and the individual accused and strikes a fair balance. A person who is found to be incompetent is treated and confined only to the extent necessary for the protection of society. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

Commitment does not deny defendant due process. The fact that the defendant may be committed to an institution for an indefinite period of time, before trial and pending the regaining of competency, affords and does not deny the defendant due process. Schwader v. District Court, 172 Colo. 474, 474 P.2d 607 (1970).

A finding of incompetence to stand trial only results in an abatement of the criminal proceedings. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

Court retains jurisdiction during confinement. During confinement the court which commits the accused retains jurisdiction to oversee his commitment and to protect his constitutional rights and should do so. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

And it is the trial judge's duty to make periodic checks to determine the status and condition of an incompetent who has criminal charges pending against him under any valid statute and who has been committed after a finding of incompetence to stand trial. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

During commitment, there can be no final judgment subject to appeal. Where defendant was committed following a determination that he became incompetent subsequent to alleged offense, and the issue raised by a plea of not guilty remains unresolved until defendant is determined to be able to stand trial, there can be no final judgment from which an appeal can be taken, as the litigation has not yet been terminated on its merits. Rupert v. People, 156 Colo. 277, 398 P.2d 434 (1965).

Section does not preclude the release on bail of a person who is determined to be incompetent and charged with a violent crime. People v. White, 819 P.2d 1096 (Colo. App. 1991).

The statute does not mandate that a restored defendant be returned to the county jail. People in Interest of Joergensen, 2022 COA 126, 524 P.3d 293.

The court of appeals can order a limited remand to the district court for restoration proceedings pursuant to this section for future determination of motions to dismiss counsel and dismiss the appeal. People v. Liggett, 2018 COA 94M, 490 P.3d 405.

Applied in People v. Chavez, 629 P.2d 1040 (Colo. 1981).