Art. 648. Procedure after determination of mental capacity or incapacity

            A. The criminal prosecution shall be resumed unless the court determines by a preponderance of the evidence that the defendant does not have the mental capacity to proceed. If the court determines that the defendant lacks mental capacity to proceed, the proceedings shall be suspended and one of the following dispositions made:

            (1) If the court determines that the defendant's mental capacity is likely to be restored within ninety days by outpatient care and treatment at a treatment facility as defined by R.S. 28:2 while remaining in the custody of the criminal authorities, and if the person is not charged with a felony or a misdemeanor classified as an offense against the person and is considered by the court to be unlikely to commit crimes of violence, then the court may order outpatient care and treatment at any institution as defined by R.S. 28:2.

            (2)(a) Except as otherwise provided for in Subsubparagraph (b) of this Subparagraph, if the person is charged with a felony, or with a misdemeanor violation of R.S. 14:35.3, and is considered by the court to be likely to commit crimes of violence, and the court determines that his mental capacity is likely to be restored within ninety days as a result of treatment, the court may order immediate jail-based treatment by the Louisiana Department of Health not to exceed ninety days. Otherwise, if his capacity cannot be restored within ninety days and inpatient treatment is recommended, the court shall commit the defendant to the Feliciana Forensic Facility.

            (b) If a person is charged with a felony violation of the Uniform Controlled Dangerous Substances Law, except for violations punishable under the provisions of R.S. 40:966(D) and (F) and 967(F)(1)(b) and (c), (2), and (3), and the court determines that his mental capacity cannot be restored within ninety days, the court shall release the person for outpatient competency restoration or other appropriate treatment.

            (c) If a person is charged with a misdemeanor classified as an offense against a person, except for a misdemeanor violation of R.S. 14:35.3, and the court determines that his mental capacity cannot be restored within ninety days, the court shall release the person for outpatient competency restoration or other appropriate treatment.

            (d) If a defendant committed to the Feliciana Forensic Facility is held in a parish jail for one hundred eighty days after the court's determination that he lacks the mental capacity to proceed, the court shall order a status conference to be held with the defense and the district attorney present, and for good cause shown and on motion of the defendant or the district attorney or on the court's own motion, the court shall order a contradictory hearing to determine whether there has been a change in the defendant's condition or other circumstances sufficient to warrant a modification of the previous order.

            (e) If a defendant committed to the Feliciana Forensic Facility is held in a parish jail for one hundred eighty days after the initial status conference provided in Subsubparagraph (d) of this Subparagraph, the court shall order a contradictory hearing to determine whether to release the defendant or to order the appropriate authorities to institute civil commitment proceedings pursuant to R.S. 28:54. The defendant shall remain in custody pending such civil commitment proceedings. If the defendant is civilly committed to a treatment facility pursuant to Title 28 of the Louisiana Revised Statutes of 1950, the director of the institution designated for the patient's treatment shall, in writing, notify the court and the district attorney when the patient is to be discharged or conditionally discharged, as long as the charges are pending.

            B.(1) In no instance shall such custody, care, and treatment exceed the time of the maximum sentence the defendant could receive if convicted of the crime with which he is charged. At any time after commitment and on the recommendation of the director or administrator of the treatment facility that the defendant will not attain the capacity to proceed with his trial in the foreseeable future, the court shall, within sixty days and after at least ten days notice to the district attorney, defendant's counsel, and the bureau of legal services of the Louisiana Department of Health, conduct a contradictory hearing to determine whether the defendant is, and will in the foreseeable future be, incapable of standing trial and whether he is a danger to himself or others.

            (2) Repealed by Acts 2008, No. 861, §2, eff. July 9, 2008.

            (3) If, after the hearing, the court determines that the incompetent defendant is unlikely in the foreseeable future to be capable of standing trial, the court shall order the defendant released or remanded to the custody of the Louisiana Department of Health which, within ten days exclusive of weekends and holidays, may institute civil commitment proceedings pursuant to Title 28 of the Louisiana Revised Statutes of 1950, or release the defendant. The defendant shall remain in custody pending such civil commitment proceedings. If the defendant is committed to a treatment facility pursuant to Title 28 of the Louisiana Revised Statutes of 1950, the director of the institution designated for the patient's treatment shall, in writing, notify the court and the district attorney when the patient is to be discharged or conditionally discharged, as long as the charges are pending. If not dismissed without prejudice at an earlier trial, charges against an unrestorable incompetent defendant shall be dismissed on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner, except for the following charges:

            (a) Charges of a crime of violence as defined in R.S. 14:2(B).

            (b) R.S. 14:46 (false imprisonment).

            (c) R.S. 14:46.1 (false imprisonment; offender armed with dangerous weapon).

            (d) R.S. 14:52 (simple arson).

            (e) R.S. 14:62 (simple burglary).

            (f) R.S. 14:62.3 (unauthorized entry of an inhabited dwelling).

            (g) R.S. 14:80¹ (carnal knowledge of a juvenile).

            (h) R.S. 14:81 (indecent behavior with juveniles).

            (i) R.S. 14:81.1 (pornography involving juveniles).

            (j) R.S. 14:81.2 (molestation of a juvenile or a person with a physical or mental disability).

            (k) R.S. 14:89(A)(2) (crime against nature).

            (l) R.S. 14:89.1(A)(2) (aggravated crime against nature).

            (m) R.S. 14:92 (contributing to the delinquency of juveniles).

            (n) R.S. 14:92.1 (encouraging or contributing to child delinquency, dependency, or neglect).

            (o) R.S. 14:93 (cruelty to juveniles).

            (p) R.S. 14:93.2.3 (second degree cruelty to juveniles).

            (q) R.S. 14:93.3 (cruelty to persons with infirmities).

            (r) R.S. 14:93.4 (exploitation of persons with infirmities).

            (s) R.S. 14:93.5 (sexual battery of persons with infirmities).

            (t) R.S. 14:102 (cruelty to animals).

            (u) R.S. 14:106 (obscenity).

            (v) R.S. 14:283 (video voyeurism).

            (w) R.S. 14:284 (Peeping Tom).

            (x) Charges against a defendant who has been convicted of a felony offense within ten years prior to the date on which he was charged for the current offense.

            C. The superintendent of the forensic unit of the Feliciana Forensic Facility shall admit only those persons specified in R.S. 28:25.1 and those persons found not guilty by reason of insanity on conditional release who have a physician's emergency certificate or who seek voluntary admission pursuant to Article 658(B)(4).

            Acts 1975, No. 325, §1; Acts 1979, No. 318, §1; Acts 1980, No. 612, §1; Acts 1982, No. 495, §1; Acts 1983, No. 399, §1; Acts 1987, No. 928, §1, eff. July 20, 1987; Acts 1988, No. 383, §1; Acts 1990, No. 755, §1; Acts 1992, No. 400, §1; Acts 1995, No. 800, §1; Acts 1997, No. 723, §1; Acts 2001, No. 472, §1; Acts 2008, No. 861, §§1, 2, eff. July 9, 2008; Acts 2010, No. 419, §1, eff. June 21, 2010; Acts 2014, No. 602, §2, eff. June 12, 2014; Acts 2014, No. 811, §31, eff. June 23, 2014; Acts 2017, No. 369, §5.

            ¹R.S. 14:80 changed to felony carnal knowledge of a juvenile by Acts 2001, No. 796, §1.