Rule 5-602.1. Competency.

A. Purpose; scope. This rule is intended to provide a timely, efficient, and accurate procedure for resolving whether a defendant is competent to stand trial. Competency to stand trial is distinct from other questions about a defendant’s mental health that may be relevant in a criminal proceeding, such as the substantive defenses of not guilty by reason of insanity at the time of commission of an offense and incapacity to form specific intent. B. Definitions. For purposes of this rule, the following definitions shall apply. (1) Competency. The terms competency, competence, and competent are used interchangeably throughout this rule and refer to whether the defendant has, (a) sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding, (b) a rational as well as factual understanding of the proceedings against the defendant, and (c) the capacity to assist in the defendant’s own defense and to comprehend the reasons for punishment. (2) Competency evaluation. A competency evaluation is an examination of the defendant by a psychologist or psychiatrist or other qualified professional recognized by the court as an expert, appointed by and acting on behalf of the court, limited to determining whether the defendant is competent to stand trial. A competency evaluation shall not state opinions about other matters at issue in the criminal case, including the defendant’s sanity at the time of the offense or ability to form a specific intent. C. Raising a question of competency; who may raise. A question of the defendant’s competency to stand trial shall be raised whenever it appears that the defendant may not be competent to stand trial. The question shall be raised by a motion for a competency evaluation and may be raised by a party or upon the court’s own motion at any stage of the proceedings. D. Motion for competency evaluation; contents. (1) By motion of a party. When a question of competence is raised by a party, a motion for a competency evaluation shall be in writing and shall contain the following: (a) a statement that the motion is based on a good faith belief that the defendant may not be competent to stand trial; (b) a description of the facts and observations about the defendant that have formed the basis for the motion. If filed by defense counsel, the motion shall contain such information without violating the attorney–client privilege; (c) a statement that the motion is not filed for purposes of delay; (d) a statement of whether the motion is opposed as provided in Rule 5-120 NMRA; (e) a completed defendant information sheet, substantially in the form approved by the Supreme Court; and (f) a request for a competency evaluation. (2) Upon the court’s own motion. When raised by the court, the court shall make a record of the specific facts or observations about the defendant that form the basis for the motion. E. Suspension of proceedings. Upon the filing of a motion for a competency evaluation, further proceedings in the case shall be suspended until the motion is denied or, if the motion is granted, until the issue of the defendant’s competency is determined. Suspension of proceedings under this paragraph shall not affect a court’s authority to set or review conditions of release under Rule 5-401 NMRA or to rule on a motion for pretrial detention under Rule 5-409 NMRA and shall not preclude further judicial action, defense motions, or discovery proceedings which may fairly be conducted without the personal participation of the defendant. F. Resolution of motion; reasonable belief. In considering a motion for a competency evaluation, the court shall comply with the following procedures. (1) Unopposed. Within two (2) days of the filing of a motion that is unopposed under Subparagraph (D)(1)(d) of this rule, the court shall file an order substantially in the form approved by the Supreme Court finding whether the motion is supported by a reasonable belief that the defendant may not be competent to stand trial. The determination shall be based upon the allegations in the motion or upon the court’s own observations of the defendant. (2) Opposed. A response in opposition to a motion for a competency evaluation shall be in writing, shall cite specific facts in opposition to the motion, and shall be filed within five (5) days of the filing of the motion or be deemed waived. Upon the filing of a response in opposition, the court shall do one of the following: (a) file an order substantially in the form approved by the Supreme Court within two (2) days finding whether the motion is supported by a reasonable belief that the defendant may not be competent to stand trial; or (b) hold a hearing on the motion and file an order substantially in the form approved by the Supreme Court within five (5) days of the filing of a response under this Subparagraph finding whether there is a reasonable belief that the defendant may not be competent to stand trial. G. Evaluation order. An order finding a reasonable belief under Paragraph F of this rule shall order the defendant to undergo a competency evaluation. Within two (2) days of filing the order, the court shall deliver a copy of the evaluation order, motion for a competency evaluation, response, if any, and a copy of the charging document to the evaluator designated to perform the evaluation. At any time, including in the order for competency evaluation, the court may order records that are reasonably necessary to the determination of the defendant’s competency. The records shall be provided to the forensic evaluator assigned to evaluating the defendant for competency. The order shall be in a form substantially approved by the Supreme Court and shall include the following: (1) the name of the evaluator; (2) a provision requiring the evaluator to file a written report with the court in accordance with Paragraph H of this rule within thirty (30) days of the entry of the order, unless the court orders the report to be filed at another time. (a) If the defendant fails to appear for a competency evaluation, or the court and/or defense counsel is unable to locate the defendant or an address for the defendant, the evaluator or entity scheduling the evaluations shall notify the court, and the court shall make a record of the reason, if known, for the failure to appear; and (b) The court may issue a new or amended order for competency evaluation restarting the thirty (30)-day time period upon notification by the evaluator of the failure to appear for the competency evaluation or cancellation of a bench warrant for the defendant’s arrest. H. Report; contents; disclosure. The report ordered under Subparagraph (G)(2) of this rule shall be filed with the court. (1) Contents of report. The report shall include the following: (a) a description of the procedures, tests, and methods used by the evaluator; (b) a clear statement of the evaluator’s clinical findings and opinions about the defendant’s competency; and if the expert’s opinion is that the defendant is not competent, then the expert shall further provide an opinion as to whether the defendant satisfies the criteria for involuntary, inpatient civil commitment in accordance with the Mental Health and Developmental Disabilities Code or involuntary treatment in an Assisted Outpatient Treatment program; (c) a description of the sources of information and the factual basis for the evaluator’s clinical findings and opinions, provided that the report shall not include information or opinions concerning the defendant’s mental condition at the time of the alleged crime or any statements made by the defendant regarding the alleged crime or any other crime; and (d) the reasoning by which the evaluator used the information to reach the clinical findings and opinions. (2) Disclosure. Within two (2) days of the filing of the report, the court shall provide a copy to the defendant and to the state. Prior to disclosure, the court shall excise any statements made by the defendant regarding the alleged crime or any other crime. The court shall notify the parties when information has been withheld under this subparagraph and that any excised information shall be sealed, preserved in the records of the court, and made available to the appellate court in the event of an appeal. I. Effect of report; final resolution of competency. (1) Motion filed before the start of a trial by jury. If the motion for a competency evaluation was filed before the start of a trial by jury, the court and the parties shall proceed as follows after receiving the report filed under Paragraph H of this rule. (a) Stipulations; objections. Within seven (7) days of the filing of the report, the parties shall confer and file with the court one of the following: (i) a joint motion to adopt the conclusion set forth in the report; or (ii) the specific, written objections of either party. (b) Hearing. The court shall hold a hearing on the question of the defendant’s competency subject to the following procedures. If the parties agree with and the court concurs in the conclusion set forth in the report, the court may vacate the hearing and proceed under Subparagraph (1)(d) of this paragraph. If a hearing is necessary, the purpose of the hearing shall be to determine based upon a preponderance of the evidence whether the defendant is not competent to stand trial, and shall be held: (i) within thirty (30) days of the date an evaluation report is submitted to the court for an incarcerated defendant charged with a felony; (ii) within ten (10) days of the date an evaluation report is submitted to the court for an incarcerated defendant charged with misdemeanor charges; or (iii) within ninety (90) days of the date an evaluation report is submitted to the court for a defendant who is not incarcerated. (c) Effect of report. The conclusion set forth in the report shall be prima facie evidence about the defendant’s competency, subject to rebuttal by the party challenging the report. (d) Final order on competency. Within three (3) days of the conclusion of the hearing held under Subparagraph (1)(b) of this paragraph, the court shall file an order resolving the question of the defendant’s competency. Upon request of the parties, the order shall include findings of fact and conclusions of law and may incorporate by reference the report filed under Paragraph H of this rule. If the court concludes that the defendant is not competent, the court shall proceed under Paragraph J of this rule. (2) Motion filed after the start of a trial by jury. If the motion for a competency evaluation was filed after the start of a trial by jury, the court shall submit the question to the jury at the close of evidence. The jury shall decide by a preponderance of the evidence if the defendant is not competent to stand trial before considering the defendant’s guilt or innocence beyond a reasonable doubt. J. Defendant found not competent to stand trial. (1) If the defendant’s competency is raised before the start of a trial by jury and the court finds that the defendant is not competent to stand trial, the court shall proceed under Rule 5-602.2 NMRA. (2) If the defendant’s competency is raised after the start of a trial by jury and the jury finds that the defendant is not competent to stand trial, the court shall declare a mistrial and proceed under Rule 5-602.2 NMRA. K. Extensions of time. The time limits provided in this rule may be extended by the court for good cause shown, provided that the aggregate of all extensions granted by the court shall not exceed ninety (90) days from the day that the motion for a competency evaluation is filed, except upon a showing of exceptional circumstances. An order extending time shall be in writing and shall state the reasons supporting the extension. An order extending time beyond the ninety (90)-day limit set forth in this paragraph shall not rely on circumstances that were used to support a previous extension. L. Effect of noncompliance with time limits. (1) The court may deny an untimely motion for extension of time or may grant it and impose other sanctions or remedial measures, as the court may deem appropriate in the circumstances. (2) In the event the question of the defendant’s competence is not resolved within the time limits provided in this rule, including any court-ordered extensions, the case shall be subject to review and dismissal without prejudice at the discretion of the court. M. Cases transferred to the district court; remand. In a case transferred to the district court under Rules 6-507.1 or 8-507.1 NMRA, the court shall do the following: (1) open a case and order a competency evaluation under Paragraph G of this rule within (5) days of receiving the order transferring the case; (2) proceed under this rule to determine whether the defendant is competent to stand trial, and (a) if the defendant is found competent, remand the case within two (2) days to the originating court; or (b) if the defendant is found not competent, proceed under Rule 5-602.2 NMRA. N. Statements and other information inadmissible. Any statements or other information elicited from a defendant or any other person for the purpose of determining the defendant’s competency shall not be admissible or used against the defendant in any criminal proceeding on any issue other than the defendant’s competency to stand trial. O. Automatic sealing of court records. Any motion, response, report, or other paper filed under this rule shall be automatically sealed without motion or order of the court as provided in Rule 5-123(C)(2) NMRA. An order for a competency evaluation under Paragraph G of this rule and a final order on competency under Paragraph I of this rule shall not be sealed except upon motion and order under Rule 5-123 NMRA.