Arizona

Criminal Procedure

Criminal Procedure

Rule 11.5 – Hearing and Orders

(a)Hearing. No later than 30 days after the experts appointed under Rule 11.3 submit their reports to the court, the court must hold a hearing to determine the defendant’s competence. The court may grant additional time for good cause. The defendant and the State may introduce other evidence about the defendant’s mental condition. If the defendant and the State stipulate in writing or on the record, the court may determine competence based solely on the experts’ reports.
(b)Orders.

(1)If Competent. If the court finds that the defendant is competent, the court must direct that proceedings continue without delay.
(2)If Incompetent but Restorable.

(A)Superior Court. If a superior court determines that the defendant is incompetent, it must either dismiss the charges on the State’s motion or order competency restoration treatment, unless there is clear and convincing evidence that the defendant will not regain competence within 15 months.
(B)Limited Jurisdiction Court. If a limited jurisdiction court determines that the defendant is incompetent, it must dismiss the charges on the State’s motion, transfer the case to the superior court for further proceedings pursuant to A.R.S. § 13-4517, or, if authorized by the presiding judge of the superior court, order competency restoration treatment, unless there is clear and convincing evidence that the defendant will not regain competence within the time period provided for the maximum possible sentence as defined in A.R.S. § 13-4515.
(C) Extended Treatment. The court may extend treatment if it finds that the defendant is progressing toward competence The extension may be 6 months beyond the 15-month limit so long as this period does not exceed the defendant’s maximum possible sentence as defined in A.R.S. § 13-4515.
(D) Involuntary Treatment. The court must determine whether the defendant will be subject to treatment without consent.
(E) Treatment Order. A treatment order must specify:

(i) the place where treatment will occur;
(ii) whether the treatment is inpatient or outpatient under A.R.S. § 13-4512(A);
(iii) the means of transportation to the treatment site;
(iv) the length of treatment;
(v) the means of transporting the defendant after treatment; and
(vi) that the court is to be notified if the defendant regains competence before the expiration of the treatment order.
(F) Modification and Limitation. The court may modify a treatment order at any time. Treatment orders are effective for no longer than 6 months.
(3)If Incompetent and Not Restorable.

(A)Superior Court. If the superior court determines that the defendant is incompetent and that there is no substantial probability that the defendant will become competent within 21 months or within the defendant’s maximum possible sentence as defined by A.R.S. § 13-4515, whichever is less, the court may on request of the examined defendant or the State do one or more of the following:

(i) remand the defendant to an evaluating agency approved and licensed under Title 36 to begin civil commitment proceedings under A.R.S. §§ 36-501 et seq.;
(ii) order appointment of a guardian under A.R.S. §§ 14-5301 et seq.;
(iii) release the defendant from custody and dismiss the charges without prejudice; or
(iv) retain jurisdiction and enter further orders as specified in A.R.S. §§ 13-4517 and 13-4518.
(B) Limited Jurisdiction Court. If a limited jurisdiction court determines that the defendant is incompetent and that there is no substantial probability that the defendant will become competent within the timeframes as defined in A.R.S. § 13-4515, the court must do one of the following:

(i) Dismiss the action on the State’s motion; or
(ii) Transfer the case to the superior court for further proceedings pursuant to A.R.S. § 13-4517.
(4)Additional Actions. If the court enters an order under (b)(3)(A)(i) or (ii), it may retain jurisdiction and enter further orders as specified in A.R.S. §§ 13-4517 and 13-4518.
(c)Restoration to Competency: Reports About Treatment.

(1)Generally. The court must order the treatment supervisor to submit a report to the court and to provide copies to defense counsel and the clinical liaison. Defense counsel may redact the report under Rule 11.4(a)(2) before returning it to the court to be provided to the State.
(2)When to Report. The treatment supervisor must submit a report:

(A) for inpatient treatment, 120 days after the filing of the court’s original treatment order and then every 180 days after the first report;
(B) for outpatient treatment, every 60 days following the filing of the court’s original treatment order;
(C) when the treatment supervisor believes the defendant is competent to stand trial;
(D) when the treatment supervisor concludes that the defendant will not be restored to competence within 21 months of the court’s finding of incompetence; and
(E) 14 days before the expiration of the court’s last treatment order.
(3)Content of Report.

(A) Generally. The treatment supervisor’s report must include at least the following:

(i) the treatment supervisor’s name;
(ii) a description of the nature, content, extent, and results of the supervisor’s examination of the defendant and any tests the supervisor conducted;
(iii) the facts on which the treatment supervisor’s findings are based; and
(iv) the treatment supervisor’s opinion regarding the defendant’s competence to understand the nature of the court proceedings against the defendant and to assist in his or her defense.
(B) If Still Incompetent. If the treatment supervisor finds the defendant is still incompetent, the report also must include:

(i) the nature of the mental illness, defect, or disability that is the cause of the incompetence;
(ii) a prognosis regarding the defendant’s restoration to competence and an estimate of how long it will take to restore the defendant’s competence; and
(iii) any recommendations for treatment modifications.
(C) If Competent. If the treatment supervisor finds the defendant has regained competence by virtue of ongoing treatment with psychotropic medication, the court may appoint a mental health expert who is a physician to address the necessity of continuing any ongoing treatment with psychotropic medication and any limitations that the medication may have on competency.
(d)Time Calculation. When calculating time limits under A.R.S. § 13-4515(A), the court must consider only the time a defendant actually spends in a program to restore competence.

Ariz. R. Crim. P. 11.5

Added August 31, 2017, effective January 1, 2018. Amended Dec. 13, 2017, effective April 2, 2018; amended effective January 1, 2019; amended July 3, 2019, effective August 27, 2019.

COMMENT

The court should hold review hearings every two to three months to monitor a defendant’s treatment status and progress.

HISTORICAL AND STATUTORY NOTES

Former Rule 11.5, relating to hearing and orders, was abrogated effective January 1, 2018.