22-3302. Proceedings to determine competency. (a) At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting attorney may request a determination of the defendant's competency to stand trial. If, upon the request of either party or upon the judge's own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial, the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.
(b) If the defendant is charged with a felony, the hearing to determine the competency of the defendant shall be conducted by a district judge.
(c) (1) The court shall determine the issue of competency and may impanel a jury of six persons to assist in making the determination. The court may order a psychiatric or psychological examination of the defendant. To facilitate the examination, the court may:
(A) Order that an evaluation be completed by an appropriate state, county or private institution or facility to be conducted in person or by use of available electronic means while the defendant is in jail, at any secure location or on pretrial release;
(B) designate an appropriate state, county or private institution or facility to conduct the examination while the defendant is in jail, at any secure location or on pretrial release; or
(C) appoint a licensed physician who is qualified through training or experience or a licensed psychologist to examine the defendant and report to the court.
(2) If the court orders the defendant committed to an institution or facility for the examination, the commitment shall be for a period not to exceed 60 days from the date of admission or until the examination is completed, whichever is the shorter period of time. No statement made by the defendant in the course of any examination provided for by this section, whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding.
(3) Before the expiration of the 60-day evaluation period, the professional approved by the court to examine the defendant or, if the defendant is committed for inpatient examination, the chief medical officer or head of the appropriate institution or facility shall certify to the court whether the defendant is competent to stand trial.
(4) Upon notification of the court that a defendant committed for psychiatric or psychological examination under this subsection has been found competent to stand trial, the court shall order that the defendant be returned no later than seven days after receipt of the notice for proceedings under this section. If the defendant is not returned within that time, the county where the proceedings will be held shall pay the costs of maintaining the defendant at the institution or facility for the period of time the defendant remains at the institution or facility in excess of the seven-day period.
(d) If the defendant is found to be competent, the proceedings that have been suspended shall be resumed. If the proceedings were suspended before or during the preliminary examination, the judge who conducted the competency hearing may conduct a preliminary examination or, if a district magistrate judge was conducting the proceedings prior to the competency hearing, the judge who conducted the competency hearing may order the preliminary examination to be heard by a district magistrate judge.
(e) If the defendant is found to be incompetent to stand trial, the court shall proceed in accordance with K.S.A. 22-3303, and amendments thereto.
(f) If proceedings are suspended and a hearing to determine the defendant's competency is ordered after the defendant is in jeopardy, the court may either order a recess or declare a mistrial.
(g) The defendant shall be present personally at all proceedings under this section.
History: L. 1970, ch. 129, § 22-3302; L. 1971, ch. 114, § 6; L. 1976, ch. 163, § 17; L. 1977, ch. 121, § 1; L. 1982, ch. 148, § 1; L. 1984, ch. 128, § 1; L. 1986, ch. 115, § 64; L. 1986, ch. 299, § 2; L. 1986, ch. 133, § 2; L. 1992, ch. 309, § 1; L. 2010, ch. 135, § 20; L. 2018, ch. 81, § 1; L. 2022, ch. 76, § 7; July 1.
Source or Prior Law:
62-1531.
Law Review and Bar Journal References:
"Representing the Mentally Retarded Defendant," Karl Menninger II, 3 J.K.T.L.A. No. 3, 6, 9 (1979).
"Amnesia: The Forgotten Justification for Finding an Accused Incompetent to Stand Trial," Kim Cocklin, 20 W.L.J. 289, 299 (1981).
"Changes Made by the New Juvenile Codes," Sheila Reynolds, 51 J.K.B.A. 181, 191 (1982).
"The Admissibility of Child Victim Hearsay in Kansas: A Defense Perspective," Christopher B. McNeil, 23 W.L.J. 265, 282 (1984).
"The Insanity Defense in Kansas: Procedure and Practice," Jack Peggs, 53 J.K.B.A. 187 (1984).
"Forensic Psychiatry: Less Typical Applications," Roy B. Lacoursiere, M.D., 30 W.L.J. 29, 33 (1990).
"Criminal Procedure Survey of Cases," 48 K.L.R. 895 (2000).
"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).
"Criminal Procedure Survey of Recent Cases, Kansas Issue," 52 K.L.R. 771 (2004).
"Minimizing Inverted Privilege: An Argument for Higher Standards for Defense Motions to Determine Competency," Bradley Hook, 27 Kan. J.L. & Pub. Pol'y 125, 127-44 (2018).
CASE ANNOTATIONS
1. Determination of incompetency hereunder requires no due process hearing to select appropriate institution. State v. Bibbs, 211 Kan. 850, 851, 508 P.2d 504.
2. Subsection (3) construed; privilege attaching to defendant's statements absolute; privilege may be waived. State v. Pyle, 216 Kan. 423, 441, 442, 532 P.2d 1309.
3. Certification hereunder; under facts defendant not denied right to speedy trial. State v. Fink, 217 Kan. 671, 672, 538 P.2d 1390.
4. Failure to comply with section; motion for post-conviction relief; evidentiary hearing ordered. Outland v. State, 219 Kan. 547, 548, 548 P.2d 725.
5. Referred to in holding voluntary admissions by accused during polygraph examination were admissible. State v. Blosser, 221 Kan. 59, 62, 558 P.2d 105.
6. Trial court did not abuse discretion in finding defendant competent to stand trial. State v. Gilder, 223 Kan. 220, 223, 574 P.2d 196.
7. Cited; time spent undergoing psychiatric examination to determine competency is not included in 90-day limit required for speedy trial (K.S.A. 22-3402). State v. Warren, 224 Kan. 454, 455, 580 P.2d 1336.
8. Defendant found competent to stand trial; denial of new trial motion affirmed. State v. Soles, 224 Kan. 698, 700, 585 P.2d 1032.
9. Cited in determining double jeopardy bar to second trial. State v. Bates, 226 Kan. 277, 282, 597 P.2d 646.
10. Cited in upholding second degree murder conviction. State v. Levier, 226 Kan. 461, 464, 465, 601 P.2d 1116.
11. The trial judge has discretion to order a psychiatric examination of a complaining witness in a sex crime case. State v. Gregg, 226 Kan. 481, 485, 602 P.2d 85.
12. Mandatory commitment of insanity acquittees does not constitute a denial of equal protection of the law, due process or cruel and unusual punishment. In re Jones, 228 Kan. 90, 98, 612 P.2d 1211.
13. Full-blown adversary hearing to determine competency not required. State v. Costa, 228 Kan. 308, 317, 614 P.2d 1359.
14. No abuse of discretion by trial court in denying defendant's motion hereunder; matter left to discretion of trial court. City of Overland Park v. Estell, 8 Kan. App. 2d 182, 187, 653 P.2d 819 (1982).
15. Shield forbidding disclosure made in competency hearing no mandate for counsel at insanity examination. State v. Brown, 235 Kan. 688, 690, 681 P.2d 1071 (1984).
16. Where state hospital physician advised court defendant was competent to stand trial, no error in refusing to empanel competency jury. State v. Boan, 235 Kan. 800, 803, 686 P.2d 160 (1984).
17. In-chambers conference on defendant's difficulty in understanding proceedings not a competency hearing requiring personal presence. State v. Baker, 236 Kan. 132, 137, 689 P.2d 803 (1984).
18. Cited; factors relevant to imposition of insanity defense sua sponte discussed. State v. Rambo, 10 Kan. App. 2d 418, 420, 699 P.2d 542 (1985).
19. Trial judge not required to seek aid of psychological or psychiatric evaluation; option is permissive. State v. Green, 245 Kan. 398, 399, 781 P.2d 678 (1989).
20. Delays caused by defendant's filing motion for competency hearing as chargeable to defendant determined. State v. Prewett, 246 Kan. 39, 44, 785 P.2d 956 (1990).
21. Denial of severance affirmed where crimes charged were of same or similar character. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
22. Effect of alleged amnesia on competency to stand trial examined. State v. Owens, 248 Kan. 273, 281, 807 P.2d 101 (1991).
23. Statute does not mandate defendant's presence when discussion concerns whether to hold competency hearing. State v. Perkins, 248 Kan. 760, 770, 811 P.2d 1142 (1991).
24. Counsel's failure to request determination of defendant's competency to assist in defense examined. State v. Ji, 251 Kan. 3, 19, 832 P.2d 1176 (1992).
25. Trial court's observations during trial in determining defendant's competency not an abuse of discretion. State v. Linn, 251 Kan. 797, 806, 840 P.2d 1133 (1992).
26. No abuse of discretion by trial court in failing to order evaluation of defendant's competency to stand trial because of psychiatric history or behavior at trial. State v. Harkness, 252 Kan. 510, 513, 515, 847 P.2d 1191 (1993).
27. Trial court's intrusion into executive function of prosecuting attorney examined. State v. Williamson, 253 Kan. 163, 164, 853 P.2d 56 (1993).
28. Judge's appointments to perform evaluation pursuant to subsection (3)(c) examined; no abuse of discretion in finding defendant competent where conflicting evidence presented. State v. Peckham, 255 Kan. 310, 322, 325, 875 P.2d 257 (1994).
29. Trial court did not abuse discretion by ruling defendant competent to stand trial; appellate review discussed. State v. Barnes, 263 Kan. 249, 255, 257, 948 P.2d 627 (1997).
30. Case is remanded for determination of whether defendant's competency is in issue; if issue hearing to satisfy due process required. State v. White, 263 Kan. 283, 314, 950 P.2d 1316 (1997).
31. When defendant participates in agreement to commit separate crimes, defendant may be convicted of conspiracy for each separate crime. State v. Mincey, 24 Kan. App. 2d 418, 420, 945 P.2d 884 (1997).
32. Statutory scheme for determining defendant's competence to stand trial is constitutional. State v. McKinney, 265 Kan. 104, 107, 961 P.2d 1 (1998).
33. Absence of defendant from proceeding where trial court ordered competency evaluation did not violate defendant's rights. State v. Brockenshire, 26 Kan. App. 2d 902, 907, 909, 995 P.2d 905 (2000).
34. Court has discretion as to scope of hearing but is required to hold hearing prior to making determination of competency to stand trial. State v. Parker, 34 Kan. App. 2d 224, 116 P.3d 759 (2005).
35. Probation is permissible sentence for conspiracy to unlawfully manufacture methamphetamine. State v. Moffit, 38 Kan. App. 2d 414, 166 P.3d 435 (2007).
36. If complaint in a conspiracy charge does not include an allegation of an overt act, it is fatally defective. State v. Spangler, 38 Kan. App. 2d 817, 818, 825, 837, 173 P.3d 656 (2008).
37. Secretary of SRS cannot legally comply with order pursuant to K.S.A. 22-3303(1) and 59-2945 et seq. if incompetency is due to traumatic brain injury. State v. Johnson, 289 Kan. 870, 218 P.3d 46 (2009).
38. Conviction under K.S.A. 21-3413 upheld; jury rejects mental disease or defect defense. State v. Hunter, 41 Kan. App. 2d 507, 203 P.3d 23 (2009).
39. No abuse of discretion by the district court in failing to initiate further competency inquiries. State v. Foster, 290 Kan. 696, 233 P.3d 265 (2010).
40. Trial shall be within 90 days of a competency finding, following a court-ordered suspension of proceedings. State v. Edwards, 291 Kan. 532, 243 P.3d 683 (2010).
41. Unless knowingly and voluntarily waived, a movant must be present at the proceedings where the court actually conducts a retrospective competency hearing to rectify a procedural competency error. State v. Ford, 302 Kan. 455, 476, 353 P.3d 1143 (2015).
42. An appellate court applies an abuse of discretion standard when reviewing a district court's determination of the feasibility of a retrospective competency hearing in the face of a procedural violation. State v. Murray, 302 Kan. 478, 484, 353 P.3d 1158 (2015).
43. Motion to correct illegal sentence not proper vehicle to challenge trial court's alleged failure to comply with K.S.A. 22-3302. State v. Donaldson, 302 Kan. 731, 737, 355 P.3d 689 (2015).
44. Defense counsel discussing concerns of whether to hold a competency hearing with judge in chambers does not require defendant's presence to comply with statute. State v. Gross, 308 Kan. 1, 8, 417 P.3d 1049 (2018).
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