Key Information

Relevant Statutes and Rules

 Ga. Stat. §§ 17-7-129, -130

Ga. R. Unif. Super. Ct. Rule 31.4

What proceedings can occur while the defendant is incompetent

None stated.

Number of examiners required

1

Ga. Stat. § 17-7-130(b)(1)

Qualifications of examiners

Physician or licensed psycholoigist. Ga. Stat. § 17-7-130(b)(1)

What must the evaluation report contain

If evaluator determines the accused to be mentally incompetent to stand trial, court may order them make recommendations as to restoring the accused to competency.

If the court finds the accused is mentally incompetent to stand trial, the court may order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the accused will attain mental competency to stand trial in the foreseeable future. § 17-7-130(c)

Are low-level offenses excluded from restoration

None stated.

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

Inpatient, but may be outpatient if defendant is charged with a misdemeanor or nonviolent offense. § 17-7-130(c)(3).`*

*Automatic commitment of violent offenders was found unconstitutional as applied in McGouirk v. State, 815 S.E.2d 825 (2018).

What is the test for restorability

"there is not a substantial probability that the accused will attain competency in the foreseeable future." § 17-7-130(c)(2)

What is the procedure after restoration

"[T]he court shall hold a bench trial to determine the accused's mental competency to stand trial within 45 days of receiving the department's evaluation or, if demanded, shall conduct a special jury trial within six months of receiving the department's evaluation." § 17-7-130(d)(1), (2).

What is the procedure if there is a finding of unrestorability

If charged with a misdemeanor, court shall, within 45 days of receiving unrestorability evaluation, (a) consider entry of a nolle prosequi of the charges and request that the department seek civil commitment in probate court; (b) if defendant does not meet the criteria for civil commitment, release defendant on pre-trial bail. Ga. Stat. § 17-7-130(e)(1).

If charged with a felony, court shall, within 45 days of receiving unrestorability evaluation, either (a) consider nolle prosequi of the charges and request that the department seek civil commitment in probate court, or (b) conduct a trial to determine whether the state has proved by clear and convincing evidence that the defendant meets the criteria for civil commitment. If defendant is not civilly committed, he shall be released on pre-trial bail. Ga. Stat. § 17-7-130(e)(2).

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

If charged with a misdemeanor, court shall, within 45 days of receiving unrestorability evaluation, (a) consider entry of a nolle prosequi of the charges and request that the department seek civil commitment in probate court; (b) if defendant does not meet the criteria for civil commitment, release defendant in accordance with Chapter 6 (the bail provisions). Ga. Stat. § 17-7-130(e)(1).

If charged with a felony, court shall, within 45 days of receiving unrestorability evaluation, either (a) consider nolle prosequi of the charges and request that the department seek civil commitment in probate court, or (b) conduct a trial to determine whether the state has proved by clear and convincing evidence that the D meets the criteria for civil commitment. If D is not civilly committed, he shall be released in accordance with Chapter 6 (the bail provisions). Ga. Stat. § 17-7-130(e)(2) 

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

12 mos. (initial 90 day period plus 9 month limit)

§ 17-7-130(c)(3)