Opinion
No. 93-KK-1213.
June 25, 1993.
In re Roberts, Harry, Jr.; — Defendant(s); applying for supervisory and/or remedial writs; to the Court of Appeal, Fourth Circuit, No. 91KA-2346; Parish of Orleans, Criminal District Court, Div. "H", No. 286-808.
Writ granted. The Court of Appeal judgment is reversed.
An insanity acquittee confined by the state is entitled to release when he has recovered his sanity or is no longer dangerous, i.e., he may be held as long as he is both mentally ill and dangerous, but no longer. Moreover, even if his continued confinement is constitutionally possible, the state may continue confinement only if it shows by clear and convincing evidence that he is mentally ill and dangerous. Foucha v. Louisiana, ___ U.S. ___, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). It is evident that at the time of the hearing below, which occurred prior to the Supreme Court's decision in Foucha, the trial court did not apply these and perhaps other constitutional principles made clear by Foucha. Accordingly, the judgments of the trial court and the court of appeal are vacated and the case is remanded to the trial court for a new hearing in light of Foucha v. Louisiana, ___ U.S. ___, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992).
WATSON, J., not on panel.