Colorado § 16-8.5-116 - Dismissal of charges after reaching maximum time permitted to restore defendant - exceptions - rules.

§ 16-8.5-116. Dismissal of charges after reaching maximum time permitted to restore defendant - exceptions - rules.

(1) At a review hearing held pursuant to section 16-8.5-112 concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement if:

(a) The defendant's highest charged offense is a class 1 misdemeanor; any misdemeanor that constitutes a first offense pursuant to part 13 of article 4 of title 42; or a level 4 drug felony, and the defendant has been in CDHS's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to CDHS for court-ordered restoration for an aggregate time of six months; and

(b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.

(2) At a review hearing held pursuant to section 16-8.5-112 concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement if:

(a) The defendant's highest charged offense is a class 5 or class 6 felony; any misdemeanor that constitutes a second or subsequent offense pursuant to part 13 of article 4 of title 42; any offense charged pursuant to section 42-4-1402 (2)(c); or a level 3 drug felony and the defendant has been in CDHS's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to CDHS for court-ordered restoration for an aggregate period of one year; and

(b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.

(3) At a review hearing held pursuant to section 16-8.5-112 concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement if:

(a) The defendant's highest charged offense is a class 4 felony and the defendant has been in CDHS's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to CDHS for court-ordered restoration for an aggregate period of two years; and

(b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.

(4) Subsections (1), (2), and (3) of this section do not apply if the defendant is charged with a class 1, 2, or 3 felony offense; a sex offense, as defined in section 18-1.3-1003 (5); a crime of violence, as defined in section 18-1.3-406 (2); or a level 1 or level 2 drug felony.

(5) The court shall dismiss the defendant's case if:

(a) The defendant is found incompetent to proceed;

(b) The charges against the defendant have not been dismissed pursuant to this section; and

(c) The defendant's presentence confinement credit, including any time period the defendant was committed for inpatient restoration services, or confined in jail or another detention facility awaiting inpatient restoration services, exceeds the maximum sentence for the defendant's highest charged offense.

(6) If the conditions allowing the court to stay a dismissal apply, the court shall stay a dismissal ordered pursuant to this section in accordance with section 16-8.5-117 or 16-8.5-118.

(7) When the defendant is charged with an offense in municipal court and the defendant is found incompetent to proceed, or when civil proceedings are initiated pursuant to article 65 of title 27, the municipal court shall dismiss the case.

(8) If a defendant is in custody and CDHS does not comply with the time limits set forth in section 16-8.5-110, and, based upon the best available evidence, the defendant will not be admitted to an inpatient facility to begin restoration services within the time limits described in subsection (1), (2), or (3) of this section, the court may release the defendant or dismiss the case in lieu of the defendant remaining in custody on a wait list for restoration services.

(9) When a defendant is in custody and is found incompetent to proceed, at every subsequent review hearing of the defendant's case, the court shall make a finding on the record regarding the expiration of applicable time limits set forth in this section.

(10) If a defendant files a motion alleging the court is required to dismiss the case because a time limit in this section has expired, the defendant is entitled to a timely hearing and ruling on the motion.

Source: L. 2026: Entire article amended with relocations, (SB 26-149), ch. 142, p. 707, § 1, effective May 21.

Editor's note: (1) Prior to its amendment with relocations in 2026, this section was similar to former § 16-8-114.5 as it existed prior to 2008.

(2) Subsections IP(6), (6)(a), (6)(b), (6)(c), (6)(d), (7), (8), (9), (10), (11), (12), (13), (14), and (15) were relocated to § 16-8.5-116.5 in 2024.

(3) Subsection (7) was amended in HB 24-1355, effective August 7, 2024. However, those amendments were superseded by the repeal of subsection (7) by HB 24-1034, effective June 4, 2024. The amendments to subsection (7) by HB 24-1355 were similar to the amendments to § 16-8.5-116.5 (2) by HB 24-1034 where subsection (7) was relocated in 2024.

(4) Amendments to subsection (14) by HB 24-1355 were identical to the amendments to and relocated to § 16-8.5-116.5 (12) as it was amended by HB 24-1034 in 2024.

(5) This section was relocated to § 16-8.5-112 in 2026.

(6) The provisions of this section are similar to several former provisions of § 16-8.5-116.5 as they existed prior to 2026. For a detailed comparison, see the comparative tables located in the back of the index.

ANNOTATION

Annotator's note. Since § 16-8.5-116 is similar to § 16-8.5-116 (10) as it existed prior to its 2024 relocation with amendments, a relevant case construing that provision has been included in the annotations to this section.

A court order dismissing the charges against the defendant based on a finding that the defendant was incompetent to proceed with no probability of restoration is a final, appealable order. People v. Ong, 2021 COA 113, 499 P.3d 375.

A stay issued under subsection (10) of a dismissal order issued under subsection (4) does not extend the finality of the order for purposes of timely filing an appeal. There was nothing more for the court to do in the competency proceedings, and the stay was issued to facilitate the transfer of the case from the criminal court to civil mental health proceedings. People v. Ong, 2021 COA 113, 499 P.3d 375.