Rule 12.5 - Hearing and Orders(a)Hearing. After submission of the reports, the court, upon its own motion or the motion of any party, shall promptly hold a hearing to determine the defendant's competency. The parties may introduce other evidence regarding the defendant's mental condition or, by stipulation (either written or stated on the record in open court), submit the matter on the experts' reports.(b)Procedure. The competency hearing is a critical stage of the proceedings, at which the defendant shall be represented by counsel. The defendant shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses, and to confront and cross-examine witnesses who appear at the hearing.(c)Finding of Competence. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and order the case to proceed to trial.(d)Finding of Incompetence. If the court finds that the defendant is incompetent to stand trial, then the court may commit the defendant to the Mississippi State Hospital, other appropriate mental health facility, or other place of treatment, either inpatient or outpatient, based on the report of a psychiatrist or psychologist pursuant to Rule 12.3(c)(2)(C) and (E). The order of commitment shall be filed with the court clerk and shall require that the defendant be examined by staff psychiatrist(s) and/or psychologist(s), and a written report be furnished to the court not less than every four (4) calendar months, stating: (1) Whether there is a substantial probability that the defendant will become mentally competent to stand trial within the foreseeable future; and(2) Whether progress toward competency is being made.(e)Release from Commitment. If, within a reasonable time after entry of a commitment order, there is neither a determination that there is a substantial probability that the defendant will become mentally competent to stand trial nor progress toward competency, the court shall order that civil proceedings as provided in Mississippi Code Section 41-21-61, et. seq., be instituted. Said proceedings shall advance notwithstanding that the defendant has criminal charges pending against him/her. The defendant shall remain in custody until determination of the civil proceedings.Comment
Under Rule 12.5(a), upon the court's own motion or the motion of any party, a competency hearing shall be conducted. But in the absence of such motion, a hearing is permissible, but not mandatory. This represents a departure from practice under former Rule 9.06 of the Uniform Rules of Circuit and County Court.
Under section (d), if the court finds the defendant to be incompetent, it shall commit the defendant to an appropriate mental health facility or other place of treatment. No order made under this section is to be effective for longer than four (4) months, thereby insuring a frequent review of each incompetent defendant's status and progress. See O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493, 45 L. Ed. 2d 396 (1975) ("even if . . . involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed"); Jackson v. Indiana, 406 U.S. 715, 720, 92 S. Ct. 1845, 1849, 32 L. Ed. 2d 435 (1972) (a state "cannot constitutionally commit [a] petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him"). Sections (d) and (e) largely continue the procedure applicable under former Rule 9.06 of the Uniform Rules of Circuit and County Court.