Key Information

Relevant Statutes and Rules

Mont. Code Ann. §§ 46-14-103 et seq.

What proceedings can occur while the defendant is incompetent

"The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution that is susceptible to fair determination prior to trial and that is made without the personal participation of the defendant."

Mont. Code Ann. § 46-14-221 (West)

Number of examiners required

1

Mont. Code Ann. § 46-14-202(1) (West)

Qualifications of examiners

"qualified psychiatrist, licensed clinical psychologist, or advanced practice registered nurse or shall request the superintendent of the Montana state hospital to designate at least one qualified psychiatrist, licensed clinical psychologist, or advanced practice registered nurse, who may be or include the superintendent"

Mont. Code Ann. § 46-14-202(1) (West)

What must the evaluation report contain

"A report of the examination must include the following:
(a) a description of the nature of the examination;
(b) a diagnosis of the mental condition of the defendant, including an opinion as to whether the defendant suffers from a mental disorder, as defined in 53-21-102, and may require commitment or is seriously developmentally disabled, as defined in 53-20-102;
(c) if the defendant suffers from a mental disease or disorder or developmental disability, an opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense;
(d) when directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind that is an element of the offense charged; and
(e) when directed by the court, an opinion as to the capacity of the defendant, because of a mental disease or disorder or developmental disability, to appreciate the criminality of the defendant's behavior or to conform the defendant's behavior to the requirement of the law."

Mont. Code Ann. § 46-14-206(1) (West)

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 only.

Mont. Code Ann. § 46-14-221(2)(a) (West)

"the court shall commit the defendant to the custody of the director of the department of public health and human services to be placed in an appropriate mental health facility, as defined in 53-21-102, or residential facility, as defined in 53-20-102, of the department of public health and human services for so long as the unfitness endures or until disposition of the defendant is made pursuant to this section"

Mont. Code Ann. § 46-14-221(2)(a) (West)

What is the test for restorability

"it does not appear that the defendant will become fit to proceed within the reasonably foreseeable future"

Mont. Code Ann. § 46-14-221(3)(a) (West)

What is the procedure after restoration

When the court, on its own motion or upon the application of the director of the department of public health and human services, the prosecution, or the defendant or the defendant's legal representative, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the proceeding must be resumed. If, however, the court is of the view that so much time has elapsed since the commitment of the defendant that it would be unjust to resume the criminal proceedings, the court may dismiss the charge and may order the defendant to be discharged or, subject to the law governing the civil commitment of persons suffering from serious mental illness, order the defendant committed to an appropriate facility of the department of public health and human services.

Mont. Code Ann. § 46-14-222 (West)

What is the procedure if there is a finding of unrestorability

"(b) If the court determines that the defendant lacks fitness to proceed because the defendant has a mental disorder, the proceeding against the defendant must be dismissed and the prosecutor shall petition the court in the manner provided in Title 53, chapter 21, to determine the disposition of the defendant pursuant to those provisions.
(c) If the court determines that the defendant lacks fitness to proceed because the defendant has a developmental disability as defined in 53-20-102, the proceeding against the defendant must be dismissed and the prosecutor shall petition the court in the manner provided in Title 53, chapter 20, to determine the disposition of the defendant pursuant to those provisions."

Mont. Code Ann. § 46-14-221(3)(b), (c) (West)

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

"the court may dismiss the charge and may order the defendant to be discharged or, subject to the law governing the civil commitment of persons suffering from serious mental illness, order the defendant committed to an appropriate facility of the department of public health and human services."

Mont. Code Ann. § 46-14-222 (West)

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

None stated.

Time limits on treatment

If, upon defendant regaining competence, court is of the view that "so much time has elapsed since the commitment of the defendant that it would be unjust to resume the criminal proceedings"

Mont. Code Ann. § 46-14-222 (West)