Colorado § 19-2.5-703 - Determination of incompetency to proceed.

§ 19-2.5-703. Determination of incompetency to proceed.

(1) Whenever the question of a juvenile's competency to proceed is raised, the court shall make a preliminary finding that the juvenile is or is not competent to proceed. If the court feels that the information available to it is inadequate for making such a finding, it shall order a competency examination.

(2) The court shall immediately notify the prosecuting attorney and defense counsel of the preliminary finding regarding competency. The prosecuting attorney or the defense counsel may request a hearing on the preliminary finding by filing a written request with the court within fourteen days after the date on which the court issues the preliminary finding, unless the court extends the time period for good cause. The preliminary finding becomes a final determination if neither the prosecuting attorney nor defense counsel requests a hearing. Upon the timely written request of either the prosecuting attorney or defense counsel, the court shall hold a competency hearing. If the court did not order a competency examination or other evaluation prior to its preliminary determination and the court determines adequate mental health information is not available, the court shall refer the juvenile for a competency examination prior to the hearing. At the conclusion of the competency hearing, the court shall make a final determination regarding the juvenile's competency to proceed. At a competency hearing held pursuant to this subsection (2), the burden of submitting evidence and the burden of proof by a preponderance of the evidence are upon the party asserting the juvenile's incompetency.

(3) If the question of a juvenile's incompetency to proceed is raised after a jury is impaneled to try the issues raised by a plea of not guilty or after the court as the finder of fact begins to hear evidence and the court determines that the juvenile is incompetent to proceed or orders the juvenile referred for a competency examination, the court may declare a mistrial. If the court declares a mistrial under these circumstances, the juvenile must not be deemed to have been placed in jeopardy with regard to the charges at issue. The juvenile may be tried on, and sentenced if adjudicated for, the same charges after the juvenile has achieved or been restored to competency.

(4) (a) If the court orders a competency evaluation, the court shall order that the competency evaluation be conducted in the least-restrictive environment, including home or community placement, if appropriate, taking into account the public safety and the best interests of the juvenile.

(b) A competency evaluation must be conducted by a licensed psychiatrist or licensed psychologist who is experienced in the clinical evaluation of juveniles and trained in forensic competency assessments, or a psychiatrist or psychologist who is in forensic training and under the supervision of a licensed forensic psychiatrist or licensed psychologist with expertise in forensic psychology.

(c) The competency evaluation must, at a minimum, include an opinion regarding whether the juvenile is incompetent to proceed as defined in section 19-2.5-701.5. If the evaluation concludes the juvenile is incompetent to proceed, the evaluation must include a recommendation as to whether there is a likelihood that the juvenile may achieve or be restored to competency in the reasonably foreseeable future and identify appropriate services to restore the juvenile to competency.

(d) The evaluator conducting the competency evaluation shall file the evaluation with the court within:

(I) Thirty-five days after issuance of the order for the competency evaluation, unless good cause is shown for a delay, if the juvenile is held in a secure detention facility;

(II) Forty-nine days after issuance of the order for the competency evaluation, unless good cause is shown for a delay, if the juvenile is not held in a secure detention facility.

Source: L. 2021: Entire article added with relocations, (SB 21-059), ch. 136, p. 611, § 2, effective October 1. L. 2023: (4)(c) amended, (HB 23-1012), ch. 205, p. 1045, § 4, effective August 7.

Editor's note: This section is similar to former § 19-2-1302 as it existed prior to 2021.

ANNOTATION

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

A juvenile is not entitled to a second competency evaluation at state expense. The provisions of the adult competency statutes, §§ 16-8.5-106 and 16-8.5-107, do not apply to juvenile delinquency proceedings. A juvenile does not have a constitutional right to a competency evaluation at state expense. People in Interest of W.P., 2013 CO 11, 295 P.3d 514.

This section applies only when a juvenile's competency is initially questioned. It does not apply after the preliminary finding or final determinations of competency, nor does it authorize subsequent competency evaluations. People in Interest of B.B.A.M., 2019 CO 103, 453 P.3d 1161.

This section does not apply to the question of restoration to competency, which is governed by §§ 19-2-1304 and 19-2-1305. People in Interest of B.B.A.M., 2019 CO 103, 453 P.3d 1161.

This section, which concerns a juvenile court's initial determination regarding competency, does not empower a juvenile court to order a second competency evaluation. However, §§ 19-2.5-704 and 19-2.5-705, in conjunction with § 19-2.5-706 (2), authorize a juvenile court to order a reassessment evaluation after the court determines a juvenile remains incompetent. People in Interest of A.C., 2022 CO 49, 517 P.3d 1228.