A. Within ninety days of the entry of the order committing an incompetent defendant to undergo treatment, the district court, sitting without a jury, shall conduct a hearing, unless waived by the defense, and shall determine:

(1) whether the defendant is competent to proceed in the criminal case; and, if not,

(2) whether the defendant is making progress under treatment toward attainment of competency within nine months from the date of the original finding of incompetency; and

(3) whether the defendant remains dangerous as that term is defined in Section 31-9-1.2 NMSA 1978.

B. At least seven days prior to the review hearing, the treatment supervisor shall submit a written progress report to the court, the state and the defense indicating:

(1) the clinical findings of the treatment supervisor and the facts upon which the findings are based;

(2) the opinion of the treatment supervisor as to whether the defendant has attained competency or as to whether the defendant is making progress under treatment toward attaining competency within nine months from the date of the original finding of incompetency and whether there is a substantial probability that the defendant will attain competency within nine months from the date of the original finding of incompetency;

(3) whether the defendant is dangerous as that term is defined in Section 31-9-1.2 NMSA 1978 or whether the defendant satisfies the criteria for involuntary commitment contained in the Mental Health and Developmental Disabilities Code [43-1-2 NMSA 1978]; and

(4) if the defendant is receiving medication, information from the prescribing physician indicating the type, the dosage and the effect of the medication on the defendant's appearance, actions and demeanor.

C. If the district court finds the defendant to be competent, the district court shall set the matter for trial, provided that if the defendant is in need of continued care or treatment and the supervisor of the defendant's treatment agrees to continue to provide it, the district court may enter any order it deems appropriate for the continued care or treatment of the defendant by the facility or program pending the conclusion of the criminal proceedings.

D. If the district court finds that the defendant is still not competent to proceed in a criminal case but that he is making progress toward attaining competency, the district court may continue or modify its original treatment order entered pursuant to Section 31-9-1.2 NMSA 1978, provided that:

(1) the question of the defendant's competency shall be reviewed again not later than nine months from the original determination of incompetency to proceed in a criminal case; and

(2) the treatment supervisor shall submit a written progress report as specified in Subsection B of this section at least seven days prior to such hearing.

E. If the district court finds that the defendant is still not competent, that he is not making progress toward attaining competency and that there is not a substantial probability that he will attain competency within nine months from the date of the original finding of incompetency, the district court shall proceed pursuant to Section 31-9-1.4 NMSA 1978. However, if the defendant is in need of continued care and treatment and the supervisor of the defendant's treatment agrees to continue to provide it, the district court may enter any order it deems appropriate for the continued care or treatment by the facility or program pending the conclusion of the proceedings.

History: 1978 Comp., § 31-9-1.3, enacted by Laws 1988, ch. 107, § 4 and by Laws 1988, ch. 108, § 4; 1993, ch. 240, § 4; 1993, ch. 249, § 4; 1999, ch. 149, § 2.

Cross references. — For rule of criminal procedure governing defenses of insanity, incompetency, and lack of capacity, see Rule 5-602 NMRA.

The 1999 amendment, effective June 18, 1999, substituted "nine months" for "one year" throughout the section; substituted "proceed in the criminal case" for "stand trial or to plead" in Subsection A(1); added Subsection A(3); added "whether there is a substantial probability that the defendant will attain competency within nine months from the date of the original finding of incompetency" in Subsection B(2); and added Subsection B(3), redesignating the remaining subsections accordingly.

The 1993 amendment, effective June 18, 1993, inserted "district" preceding "court" throughout the section; inserted "to proceed in a criminal case" in the introductory paragraph of Subsection D, and substituted "original determination of incompetency to proceed in a criminal case" for "first review hearing" in Subsection D(1). This section was also amended by Laws 1993, ch. 240, § 4, effective June 18, 1993. The section was set out as amended by Laws 1993, ch. 249, § 4. See 12-1-8 NMSA 1978.