Bill 936

                    Current Status

Bill Number:               936
Ratification Number:       485
Act Number                 419
Introducing Body:          Senate
Subject:                   Determination of the capacity of a person
                           charged with a crime to stand trial

(A419, R485, S936)

AN ACT TO AMEND SECTION 44-23-410, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DETERMINATION OF THE CAPACITY OF A PERSON CHARGED WITH A CRIME TO STAND TRIAL, SO AS TO FURTHER PROVIDE FOR THE PROCEDURES TO BE FOLLOWED IN MAKING THIS DETERMINATION.

Be it enacted by the General Assembly of the State of South Carolina:

Procedures revised

SECTION 1. Section 44-23-410 of the 1976 Code is amended to read:

"Section 44-23-410. Whenever a judge of the circuit court or family court has reason to believe that a person on trial before him, charged with the commission of a criminal offense, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall:

(1) order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Mental Retardation if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation; the examination must be made within fifteen days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or

(2) order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Mental Retardation for a period not to exceed fifteen days. If at the end of fifteen days the examiners have been unable to determine whether the person is fit to stand trial, the director of the facility shall request in writing an additional period for observation not to exceed fifteen days. If the person or his counsel requests, the person may be examined additionally by a designated examiner of his choice. The report of the examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. However, the court may prescribe the time and conditions under which the independent examination is conducted.

If the examiners designated by the Department of Mental Health find indications of mental retardation but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is 'not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Retardation.

If the examiners designated by the Department of Mental Retardation find indications of mental illness but not mental retardation, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does 'not have mental retardation' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health.

If either the Department of Mental Health or the Department of Mental Retardation finds a preliminary indication of a dual diagnosis of mental illness and mental retardation, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Mental Retardation be designated to further evaluate the person and render a final report on his mental capacity."

Time effective

SECTION 2. This act takes effect upon approval by the Governor.

Approved the 25th day of April, 1990.