When the superintendent of a hospital or intellectual disability facility believes that a person against whom criminal charges are pending no longer requires hospitalization, the court in which criminal charges are pending shall be notified and shall set a date for and notify the person of a hearing on the issue of fitness pursuant to Section 44-23-430. At such time, the person shall be entitled to assistance of counsel:

1. (1) if upon the completion of the hearing, the court finds the person unfit to stand trial, it shall order his release from the hospital; and
2. (2) if such a person has been hospitalized for a period of time exceeding the maximum possible period of imprisonment to which the person could have been sentenced if convicted as charged, the court shall order the charges dismissed and the person released; or
3. (3) the court may order that criminal proceedings against a person who has been found fit to stand trial be resumed, or the court may dismiss criminal charges and order the person released if so much time has elapsed that prosecution would not be in the interest of justice.

HISTORY: 1962 Code Section 32-983; 1974 (58) 2642; 1977 Act No. 99, Section 17; 2011 Act No. 47, Section 5, eff June 7, 2011.

Editor's Note

2011 Act No. 47, Section 13, provides as follows:

"SECTION 13. In Sections 1 through 6 of this act, the terms 'intellectual disability' and 'person with intellectual disability' have replaced and have the same meanings as the former terms 'mental retardation' and 'mentally retarded'."

Effect of Amendment

The 2011 amendment substituted "intellectual disability" for "mental retardation" in the first undesignated paragraph.