1. A. Within ninety days after a court issues an order committing a defendant for competency restoration, the court, sitting without a jury, shall conduct a review hearing, unless waived by the defense, and shall determine:

   1. (1) whether the defendant has been restored to competency or remains not competent to stand trial;
   2. (2) if the defendant remains not competent, whether the defendant is making progress toward being restored to competency within nine months from the date the court determined the defendant is not competent to stand trial; and
   3. (3) whether the defendant remains dangerous as determined by the court in accordance with Section 31-9-1.2 NMSA 1978.

2. 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 that includes:

   1. (1) the clinical findings regarding the defendant's progress toward competency restoration and the facts upon which the findings are based;
   2. (2) an opinion as to whether the defendant has been restored to competency or as to whether the defendant is making progress toward being restored to competency within nine months from the date the court determined the defendant is not competent to stand trial and whether there is a substantial probability that the defendant will be restored to competency within nine months from the date the court determined the defendant is not competent to stand trial;
   3. (3) an opinion as to whether the defendant remains dangerous as determined by the court in accordance with Section 31-9-1.2 NMSA 1978; and
   4. (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.
3. C. If the district court finds that the defendant is restored to competency, the district court shall set the matter for trial; provided that if the defendant is in need of continued care or treatment and the department of health agrees to continue to provide it, the district court may order continued care or treatment of the defendant until the conclusion of the criminal proceedings.

4. D. If the district court finds that the defendant remains not competent but that the defendant is making progress toward being restored to competency, the district court may continue or modify its original commitment order entered pursuant to Section 31-9-1.2 NMSA 1978; provided that:

   1. (1) the question of the defendant's competency shall be reviewed again not later than nine months from the date the court determined the defendant is not competent to stand trial; and
   2. (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.
5. E. If the district court finds that the defendant remains not competent, that the defendant is not making progress toward being restored to competency and that there is not a substantial probability that the defendant will be restored to competency within nine months from the date the court determined the defendant is not competent to stand trial, the 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 department of health agrees to continue to provide it, the district court may order continued care or treatment of the defendant by the department until the conclusion of the criminal 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; 2025, ch. 4, § 4.

ANNOTATIONS

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

The 2025 amendment, effective June 20, 2025, clarified certain language related to the determination of competency, and clarified the procedures related to the treatment of defendants who have been determined not to be competent to stand trial; in Subsection A, in the introductory clause, after "Within ninety days", deleted "of the entry of the order committing an incompetent defendant to undergo treatment, the district court" and added "after a court issues an order committing a defendant for competency restoration , the court", in Paragraph A(1), after "whether the defendant", deleted "is competent to proceed in the criminal case; and, if not" and added "has been restored to competency or remains not competent to stand trial", and in Paragraph A(2), after the paragraph designation, added "if the defendant remains not competent", and after "within nine months from the date", deleted "of the original finding of incompetency" and added "the court determined the defendant is not competent to stand trial"; in Subsection B, Paragraph B(1), after "the clinical findings", deleted "of the treatment supervisor" and added "regarding the defendant's progress toward competency restoration", in Paragraph B(2), after "opinion", deleted "of the treatment supervisor", after both occurrences of "within nine months from the date", deleted "of the original finding of incompetency" and added "the court determined the defendant is not competent to stand trial", and in Paragraph B(3), after the paragraph designation, added "an opinion as to", and after "Section 31-9-1.2 NMSA 1978", deleted "or whether the defendant satisfies the criteria for involuntary commitment contained in the Mental Health and Developmental Disabilities Code"; in Subsection C, after "continued care or treatment and the", deleted "supervisor of the defendant's treatment" and added "department of health"; in Subsection D, Paragraph D(1), after "no later than nine months from the", deleted "original determination of incompetency to proceed in a criminal case" and added "date the court determined the defendant is not competent to stand trial"; and in Subsection E, after "within nine months from the date", deleted "of the original finding of incompetency the district court" and added "the court determined the defendant is not competent to stand trial, the court", and after "continued care and treatment and the", deleted "supervisor of the defendant's treatment" and added "department of health", and after "continued care or treatment of the defendant by the", deleted "facility or program pending" and added "department until".

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.