Bill Text: MI HB5325 | 2019-2020 | 100th Legislature | Introduced

Michigan House Bill 5325 (Prior Session Legislation)

Introduced

Bill Title: Criminal procedure; mental capacity; time limitation on completion of an examination to evaluate incompetence to stand trial and other revisions to procedures related to criminal responsibility; provide for. Amends secs. 20a & 36, ch. VIII of 1927 PA 175 (MCL 768.20a & 768.36) & adds secs. 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 & 51 to ch. VIII.

Spectrum: Moderate Partisan Bill (Republican 4-1)

Status: (Introduced - Dead) 2020-01-14 - Bill Electronically Reproduced 01/14/2020 [HB5325 Detail]

Download: Michigan-2019-HB5325-Introduced.html

HOUSE BILL NO. 5325

January 09, 2020, Introduced by Reps. Calley, Brann, Wozniak, LaFave and Hammoud and referred to the Committee on Judiciary.

A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending sections 20a and 36 of chapter VIII (MCL 768.20a and 768.36), as amended by 2014 PA 76, and by adding sections 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, and 51 to chapter VIII.

the people of the state of michigan enact:

CHAPTER VIII

Sec. 20a. (1) If a defendant in a felony case proposes to offer in his or her defense testimony to establish his or her insanity at the time of an alleged offense, the defendant shall file and serve upon the court and the prosecuting attorney a notice in writing of his or her intention to assert the defense of insanity not less than 30 days before the date set for the trial of the case, or at such other time as the court directs.

(2) Upon receipt of a notice of an intention to assert the defense of insanity, a court shall order the defendant to undergo an examination relating to his or her claim of insanity by personnel of the center for forensic psychiatry or by other qualified personnel, as applicable, for a period as determined by the court, but not to exceed 60 days from the date of the order. When If the defendant is to be held in jail pending trial, the center or the other qualified personnel may perform the examination in the jail, or may notify the sheriff to transport the defendant to the center or facility used by the qualified personnel for the examination, and the sheriff shall return the defendant to the jail upon completion of the examination. When If the defendant is at liberty pending trial, on bail or otherwise, the defendant shall make himself or herself available for the examination at the place and time established by the center or the other qualified personnel. If the defendant, after being notified of the place and time of the examination, fails to make himself or herself available for the examination, the court may, without a hearing, order his or her commitment to the center.

(3) If the defendant is to be held in jail pending trial, the center or court-appointed qualified personnel shall schedule an appointment to complete the examination within 30 days of the order. If the center does not schedule and complete the examination within 30 days, the court may appoint independent qualified personnel outside of the center to complete the examination in a number of days as ordered by the court. Payment for the examination must be made by the county, but the expense to the county to have an examination completed outside of the center must be deducted from the county's yearly transmittal to the state. The court shall transmit information annually to the state court administrative office in a form and manner approved by the state court administrative office that records each time the center was unable to complete the examination within the required time period and the court appointed qualified personnel outside of the center to complete the examination.

(4) (3) The defendant may, at his or her own expense, secure an independent psychiatric evaluation by a clinician of his or her choice on the issue of his or her insanity at the time the alleged offense was committed. If the defendant is indigent, the court may, upon showing of good cause, order that the county pay for an independent psychiatric evaluation. The defendant shall notify the prosecuting attorney at least 5 days before the day scheduled for the independent evaluation that he or she intends to secure such an evaluation. The prosecuting attorney may similarly obtain an independent psychiatric evaluation. A clinician secured by an indigent defendant is entitled to receive a reasonable fee as approved by the court.

(5) (4) The defendant shall fully cooperate in his or her examination by personnel of the center for forensic psychiatry or by other qualified personnel, and by any other independent examiners for the defense and prosecution. If he or she fails to cooperate, and that failure is established to the satisfaction of the court at a hearing prior to trial, the defendant shall must be barred from presenting testimony relating to his or her insanity at the trial of the case.

(6) (5) Statements made by the defendant to personnel of the center, for forensic psychiatry, to other qualified personnel, or to any independent examiner during an examination shall are not be admissible or and do not have probative value in court at the trial of the case on any issues other than his or her mental illness or insanity at the time of the alleged offense.

(7) (6) Upon conclusion of the examination, the center for forensic psychiatry or the other qualified personnel, and any independent examiner, shall prepare a written report and shall submit the report to the prosecuting attorney and defense counsel. The report shall must contain all of the following:

(a) The clinical findings of the center, the qualified personnel, or any independent examiner.

(b) The facts, in reasonable detail, upon which the findings were based.

(c) The opinion of the center or qualified personnel, and the independent examiner on the issue of the defendant's insanity at the time the alleged offense was committed and whether the defendant was mentally ill or intellectually disabled at the time the alleged offense was committed.

(8) The written report described in subsection (7) must be provided to the court upon the written consent of the defendant.

(9) (7) Within 10 days after the receipt of the report from the center for forensic psychiatry or from the qualified personnel, or within 10 days after the receipt of the report of an independent examiner secured by the prosecution, whichever occurs later, but not later than 5 days before the trial of the case, or at another time the court directs, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal of the defense of insanity which shall that must contain the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal.

(10) (8) The report of the center, for forensic psychiatry, the qualified personnel, or any independent examiner may be is admissible in evidence upon the stipulation of the prosecution and defense.

(11) If a defendant is found not guilty by reason of insanity, the court shall immediately commit the defendant to the custody of the center for a period as determined appropriate by the court, but not to exceed 60 days. Within 72 hours of the court's commitment of the defendant to the center, the court must forward to the prosecutor, defense counsel, and center a settled record that consists of the facts concerning the crime that the defendant was found to have committed but of which he or she was acquitted by reason of insanity, including all police reports, all witness statements, and any reports previously generated by the center or other mental health professional that were filed with the court regarding the instant case. The center shall thoroughly examine and evaluate the present mental condition of the defendant in order to reach an opinion on whether the defendant meets the criteria of a person requiring treatment in section 401 of the mental health code, 1974 PA 258, MCL 330.1401.

(12) Within the 60-day period described in subsection (11), the center shall file a report with the court, prosecuting attorney, and defense counsel. The report required under this subsection must contain a summary of the crime which the defendant committed but of which he or she was acquitted by reason of insanity and an opinion as to whether the defendant meets the criteria of a person requiring treatment as defined in section 401 of the mental health code, 1974 PA 258, MCL 330.1401, and the facts upon which the opinion is based. If the opinion stated is that the defendant is a person requiring treatment, the report must be accompanied by clinical certificates from 2 qualified personnel, at least 1 of whom must be a psychiatrist.

(13) Within 48 hours of receipt of the report required under subsection (12), the court may direct the prosecuting attorney to file a petition on a form approved by the state court administrative office under section 1050 of the mental health code, 1974 PA 258, MCL 330.2050, for an order requiring mental health treatment with the probate court of the person's county of residence or of the county in which the criminal trial was held. The report and any clinical certificates that accompanied the report of the center must be filed with the petition and must be considered sufficient to cause a hearing to be held under section 451 of the mental health code, 1974 PA 258, MCL 330.1451, even if they were not executed within 72 hours of the filing of the petition. Upon the order requiring the prosecuting attorney to file a petition under section 1050 of the mental health code, 1974 PA 258, MCL 330.2050, the prosecutor shall also attach a copy of the report from the center and a copy of the settled record to the petition.

(14) If the court does not order the prosecuting attorney to file a petition under section 434 of the mental health code, 1974 PA 258, MCL 330.1434, the prosecutor shall immediately notify the center in writing. The center, upon receipt of the notification, shall immediately cause the person to be discharged.

(15) If the report required under subsection (12) states the opinion that the defendant meets the criteria of a person requiring treatment, and if a petition is ordered to be filed under subsection (13), the center may retain the defendant pending a hearing on the petition. If the center determines that the individual is not a risk to himself or herself or others, the center may release the defendant to his or her residence or to a community facility with an outpatient mental health treatment plan pending the hearing in probate court. The center shall immediately inform the court in writing as to the location of the defendant and must continually update the court when that location changes.

(16) (9) As used in this section: , "qualified

(a) "Center" or "center for forensic psychiatry" means the center established under section 128 of the mental health code, 1974 PA 258, MCL 330.1128.

(b) "Clinical certificate" means the written conclusion and statement of a physician or a licensed psychologist that an individual is a person requiring treatment together with the information and opinions, in reasonable detail, that underlie the conclusion, on the form prescribed by the department of health and human services or on a substantially similar form.

(c) "Qualified personnel" means personnel meeting standards determined by the department of community health under rules promulgated pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.a licensed psychologist, physician, or psychiatrist in good standing under the licensing laws of this state.

Sec. 36. (1) If the defendant asserts a defense of insanity in compliance with section 20a of this chapter, the defendant may be found "guilty but mentally ill" if, after trial, the trier of fact finds all of the following:

(a) The defendant is guilty beyond a reasonable doubt of an offense.

(b) The defendant has proven by a preponderance of the evidence that he or she was mentally ill at the time of the commission of that offense.

(c) The defendant has not established by a preponderance of the evidence that he or she lacked the substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law.

(2) If the defendant asserts a defense of insanity in compliance with section 20a of this chapter and the defendant waives his or her right to trial, by jury or by judge, the trial judge, with the approval of the prosecuting attorney, may accept a plea of guilty but mentally ill in lieu of a plea of guilty or a plea of nolo contendere. The judge shall not accept a plea of guilty but mentally ill until, with the defendant's consent, the judge has examined the report or reports prepared in compliance with section 20a of this chapter, the judge has held a hearing on the issue of the defendant's mental illness at which either party may present evidence, and the judge is satisfied that the defendant has proven by a preponderance of the evidence that the defendant was mentally ill at the time of the offense to which the plea is entered. The reports shall must be made a part of the record of the case.

(3) If a defendant is found guilty but mentally ill or enters a plea to that effect which that is accepted by the court, the court shall impose any sentence that could be imposed by law upon a defendant who is convicted of the same offense. If the defendant is committed to the custody of the department of corrections, the defendant shall must undergo further evaluation and be given such provided treatment as is psychiatrically indicated for his or her mental illness or intellectual disability. Treatment may be provided by the department of corrections or by the department of community health and human services as provided by law. Sections 1004 and 1006 of the mental health code, 1974 PA 258, MCL 330.2004 and 330.2006, apply to the discharge of the defendant from a facility of the department of community health and human services to which the defendant has been admitted and to the return of the defendant to the department of corrections for the balance of the defendant's sentence. When a treating facility designated by either the department of corrections or the department of community health and human services discharges the defendant before the expiration of the defendant's sentence, that treating facility shall transmit to the parole board a report on the condition of the defendant that contains the clinical facts, the diagnosis, the course of treatment, the prognosis for the remission of symptoms, the potential for recidivism, the danger of the defendant to himself or herself or to the public, and recommendations for future treatment. If the parole board considers the defendant for parole, the board shall consult with the treating facility at which the defendant is being treated or from which the defendant has been discharged and a comparable report on the condition of the defendant shall must be filed with the board. If the defendant is placed on parole, the defendant's treatment shall, upon recommendation of the treating facility, be made a condition of parole. Failure to continue treatment except by agreement with the designated facility and parole board is grounds for revocation of parole.

(4) If a defendant who is found guilty but mentally ill is placed on probation under the jurisdiction of the sentencing court as provided by law, the trial judge, upon recommendation of the center, for forensic psychiatry, shall make treatment a condition of probation. Reports as specified by the trial judge shall must be filed with the probation officer and the sentencing court. Failure to continue treatment, except by agreement with the treating agency and the sentencing court, is grounds for revocation of probation. The period of probation shall must not be for less than 5 years 1 year and shall must not be shortened without receipt and consideration of a forensic psychiatric report by the sentencing court. Treatment shall must be provided by an agency of the department of community health and human services or, with the approval of the sentencing court and at individual expense, by private agencies, private physicians, or other mental health personnel. A psychiatric report shall must be filed with the probation officer and the sentencing court every 3 months during the period of probation. If a motion on a petition to discontinue probation is made by the defendant, the probation officer shall request a report as specified from the center for forensic psychiatry or any other facility certified by the department of community health and human services for the performance of forensic psychiatric evaluation.

(5) As used in this section and in sections 38, 40, 41, 42, 48, and 51 of this chapter, "center" or "center for forensic psychiatry" means the center established under section 128 of the mental health code, 1974 PA 258, MCL 330.1128.

Sec. 38. (1) A defendant to a criminal charge is presumed competent to stand trial. He or she must be determined incompetent to stand trial only if he or she is incapable, because of his or her mental condition, of understanding the nature and object of the proceedings against him or her or of assisting in his or her defense in a rational manner. The court shall determine the capacity of a defendant to assist in his or her defense by his or her ability to perform the tasks reasonably necessary for him or her to perform in the preparation of his or her defense and during his or her trial.

(2) A defendant must not be determined incompetent to stand trial because psychotropic drugs or other medication have been or are being administered under proper medical direction, and even though without such medication the defendant might be incompetent to stand trial. However, when the defendant is receiving such medication, the court may, prior to making its determination on the issue of incompetence to stand trial, require the filing of a statement by the treating physician that such medication will not adversely affect the defendant's understanding of the proceedings or his or her ability to assist in his or her defense.

Sec. 39. (1) A defendant who is determined incompetent to stand trial must not be proceeded against while he or she is incompetent.

(2) Any pretrial motion may be made by either the defense or prosecution while a defendant is incompetent to stand trial, and the issues presented by the motion must be heard and decided if the presence of the defendant is not essential for a fair hearing and decision on the motion.

(3) If it appears that evidence essential to the case the defense or prosecution plans to present might not be available at the time of trial, the court shall allow such evidence to be taken and preserved. Evidence taken under this subsection is admissible at the trial only if it is not otherwise available. Procedures for the taking and preserving of evidence under this subsection, and the conditions under which the evidence is admissible at trial, must be provided by court rule.

Sec. 40. (1) The issue of incompetence to stand trial may be raised by the defense, court, or prosecution. The time and form of the procedure for raising the issue must be provided by court rule.

(2) If the issue of incompetence is raised, the court shall hold a hearing to determine placement and conditions for bond. The defendant has the burden to prove to the court that he or she should not be placed in the center for forensic psychiatry and should instead be placed in the community on bond and provided outpatient treatment as described in section 468(2)(d) of the mental health code, 1974 PA 258, MCL 330.1468. Any mental health outpatient treatment ordered under this section must be a condition of bond as set under section 47 of this chapter.

Sec. 41. (1) Upon a showing that the defendant may be incompetent to stand trial, the court shall order the defendant to undergo an examination by personnel of either the center for forensic psychiatry or other facility officially certified by the department of health and human services to perform examinations relating to the issue of incompetence to stand trial. The defendant must make himself or herself available for the examination at the places and times established by the center or other certified facility. If the defendant, after being notified, fails to make himself or herself available for the examination, the court may order his or her commitment to the center or other facility without a hearing. If the defendant is to be held in a jail or similar place of detention pending trial, the center or other facility may perform the examination in the jail or may notify the sheriff to transport the defendant to the center for forensic psychiatry or other facility for the examination, and the sheriff must return the defendant to the jail upon completion of the examination.

(2) Except as provided in subsection (1), if the defendant is not to be held in a jail or similar place of detention pending trial, the court shall commit him or her to the center or other facility only when the commitment is necessary for the performance of the examination. The defendant must be released by the center or other facility upon completion of the examination.

(3) If any subsequent examination of the defendant is completed that differs from the original opinion on the issue of incompetency, the court shall hold a hearing within 7 days of receipt of the differing opinion to determine if the trial on the original charges should proceed. If a prior evaluation resulted in a determination that the defendant is incompetent to stand trial and a subsequent evaluation results in a determination that the defendant is competent to stand trial, the court must receive clear and convincing evidence to find that the defendant is competent and should proceed to trial.

Sec. 42. (1) If the defendant is ordered to undergo an examination under section 41 of this chapter, the center for forensic psychiatry or other facility must, for the purpose of gathering psychiatric and other information pertinent to the issue of the incompetence of the defendant to stand trial, examine the defendant and consult with defense counsel, and may consult with the prosecutor or other persons. Defense counsel must make himself or herself available for consultation with the center or other facility. The examination must be performed, defense counsel consulted, and a written report submitted to the court, prosecuting attorney, and defense counsel within 60 days of the date of the order for evaluation.

(2) The report required under subsection (1) must contain all of the following:

(a) The clinical findings of the center or other facility.

(b) The facts, in reasonable detail, upon which the findings are based, and upon request of the court, defense, or prosecution additional facts germane to the findings.

(d) If the opinion provided under subdivision (c) is that the defendant is incompetent to stand trial, the opinion of the center or other facility on the likelihood of the defendant attaining competence to stand trial, if he or she is provided a course of treatment, within the time limit established under section 46 of this chapter.

(3) Except as otherwise provided in this subsection, the opinion concerning competency to stand trial derived from the examination is not admissible as evidence for any purpose in the pending criminal proceedings, except on the issues to be determined in the hearings required or permitted under sections 43 and 49 of this chapter. The foregoing bar of testimony does not prohibit the examining qualified clinician from presenting, at other stages in the criminal proceedings, opinions concerning criminal responsibility, disposition, or other issues if the opinions were originally requested by the court and are available. Information gathered in the course of a prior examination that is of historical value to the examining qualified clinician may be utilized in the formulation of an opinion in any subsequent court-ordered evaluation.

Sec. 43. (1) Unless the defense or prosecution for good cause requests a delay for a reasonable time, upon receipt of the written report required under section 42 of this chapter, the court must cause the defendant to appear in court and must hold a hearing within 5 days or upon the conclusion of the case, proceeding, or other matter then before it, whichever is sooner.

(2) On the basis of the evidence admitted at a hearing held under subsection (1), the court shall determine the issue of the competence of the defendant to stand trial. If the defendant is determined to be incompetent to stand trial, the court shall also determine whether there is a substantial probability that the defendant, if provided a course of treatment, will attain competence to stand trial within the time limit established under section 46 of this chapter.

(3) The written report required under section 42 of this chapter is admissible as competent evidence in a hearing under subsection (1), unless the defense or prosecution objects, but not for any other purpose in the pending criminal proceeding. The defense, the prosecution, and the court on its own motion may present additional evidence relevant to the issues to be determined at the hearing.

(4) If the defendant is receiving medication and is not determined incompetent to stand trial, the court may, in order to maintain the competence of the defendant to stand trial, make orders as the court deems appropriate for the continued administration of the medication pending and during trial.

Sec. 44. If the defendant is determined incompetent to stand trial, and if the court determines that there is not a substantial probability that, if provided a course of treatment, he or she will attain competence to stand trial within the time limit established under section 46 of this chapter, the court may direct a prosecuting attorney to file a petition asserting that the defendant is a person requiring treatment as defined by section 401 of the mental health code, 1974 PA 258, MCL 330.1401, with the probate court in the defendant's county of residence.

Sec. 45. (1) If the defendant is determined incompetent to stand trial, and if the court determines that there is a substantial probability that, if provided a course of treatment, he or she will attain competence to stand trial within the time limit established under section 46 of this chapter, the court shall order him or her to undergo treatment to render him or her competent to stand trial.

(2) The court shall appoint a medical supervisor of the course of treatment. The supervisor may be any person or agency willing to supervise the course of treatment, or the department of health and human services.

(3) The court may commit the defendant to the custody of the department of health and human services, or to the custody of any other inpatient mental health facility if it agrees, only if commitment is necessary for the effective administration of the course of treatment or if an outpatient mental health treatment plan is ordered as a bond condition. If the defendant, absent commitment to an inpatient facility, would otherwise be held in a jail or similar place of detention pending trial, the court may enter an order restricting the defendant in his or her movements to the buildings and grounds of the facility at which he or she is to be treated.

Sec. 46. (1) Except as to an offense punishable by imprisonment for life, an order or combination of orders issued under section 45 or 49 of this chapter, or both, must not have force and effect for a total period in excess of 15 months or 1/3 of the maximum sentence the defendant could receive if convicted of the charges against him or her, whichever is less, or after the charges against the defendant are dismissed.

(2) An order or combination of orders for an offense punishable by imprisonment for life issued under section 45 or 49 of this chapter, or both, must not have force and effect for a total period in excess of 24 months or 1/3 of the maximum sentence the defendant could receive if convicted of the charges against him or her, whichever is less, or after the charges against the defendant are dismissed.

(3) The court shall notify defense counsel, the prosecution, and the medical supervisor of treatment whenever the charges against the defendant are dismissed or whenever an order is voided by the court before the stated time period in the order has elapsed.

(4) If the defendant is to be discharged or released because of the expiration of an order or orders under section 45 or 49 of this chapter, the supervisor of treatment prior to the discharge or release may file a petition asserting that the defendant is a person requiring treatment, as that term is defined in section 401 of the mental health code, 1974 PA 258, MCL 330.1401, with the probate court of the defendant's county of residence.

Sec. 47. (1) The right of the defendant to be at liberty pending trial, on bail or otherwise, must not be impaired because the issue of incompetence to stand trial has been raised, because the defendant has been determined incompetent to stand trial, or because the defendant has been ordered to undergo treatment to render him or her competent to stand trial, except to the extent authorized under section 41 of this chapter for the purpose of an examination or under section 45 of this chapter for the purpose of administering a course of treatment.

(2) Notwithstanding any other provision of law, the court may order the defendant to comply with conditions that the court determines are appropriate including any of the following:

(a) That the defendant appear before the court as required, not leave the state without permission of the court, and not commit any crime while released.

(b) That the defendant comply with all mental health treatment as recommended, including inpatient and outpatient treatment.

(c) Any other condition or conditions the court determines are reasonably necessary to ensure the appearance of the defendant as required and the safety of the public.

Sec. 48. (1) The medical supervisor of treatment ordered under this chapter must transmit a written report to the court, prosecuting attorney, defense counsel, and the center for forensic psychiatry at the following times:

(a) Not less than at least once every 90 days from the date of an order issued under section 45 of this chapter.

(b) Whenever he or she is of the opinion that the defendant is no longer incompetent to stand trial.

(c) Whenever he or she is of the opinion that there is not a substantial probability that the defendant, with treatment, will attain competence to stand trial within the time limit established under section 46 of this chapter.

(2) The reports transmitted under subsection (1) are admissible in a hearing conducted under section 43 of this chapter and must contain all of the following:

(a) The clinical findings of the supervisor of treatment.

(b) The facts, in reasonable detail, upon which the findings are based, and upon request of the court, defense, or prosecution additional facts germane to the findings.

(d) If the opinion is that the defendant is incompetent to stand trial, the opinion of the supervisor of treatment on whether the defendant has made progress toward attaining competence to stand trial during the course of treatment.

Sec. 49. (1) Unless the defense waives the hearing, the court must hear and redetermine the issue of the incompetence of the defendant to stand trial and, if the defendant is redetermined incompetent to stand trial, must hear and determine whether the defendant has made progress toward attaining competence to stand trial during his course of treatment, whenever the court receives a report from the supervisor of treatment, or whenever deemed appropriate by the court.

(2) The procedures provided in section 43 of this chapter govern hearings held under this section.

(3) If the defendant is determined to be competent to stand trial at a hearing held under this section, trial must commence as soon as practicable. If the defendant is redetermined incompetent to stand trial, and if the court determines that the defendant has made progress toward attaining competence to stand trial, the court may modify or continue any orders it previously issued under section 45 of this chapter.

Sec. 50. Time spent in custody because of orders issued under sections 41, 45, and 49 of this chapter must be credited against any sentence imposed on the defendant in the pending criminal case or in any other case arising from the same transaction.

Sec. 51. (1) The charges against a defendant determined incompetent to stand trial must be dismissed if either of the following occur, whichever occurs first:

(a) The prosecutor notifies the court of his or her intention not to prosecute the case.

(b) Fifteen months have elapsed from the date on which the defendant was originally determined incompetent to stand trial.

(2) Except as provided in this section, if charges are dismissed under subsection (1), the same charges, or other charges arising from the transaction that gave rise to the dismissed charges, must not subsequently be filed against the defendant.

(3) If the charges were dismissed under subsection (1)(b) and if the crime charged was punishable by a sentence of life imprisonment, the prosecutor may at any time petition the court for permission to again file charges. In the case of other charges dismissed under subsection (1)(b), the prosecutor may, within that period of time after the charges were dismissed equal to 1/3 of the maximum sentence that the defendant could receive on the charges, petition the court for permission to again file charges.

(4) The court must grant permission to again file charges under subsection (3) if after a hearing it determines that the defendant is competent to stand trial. Prior to the hearing, the court may order the defendant to be examined by personnel of the center for forensic psychiatry or other qualified person as an outpatient, but may not commit the defendant to the center or any other facility for the examination.

Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect unless Senate Bill No.____ or House Bill No. 5326 (request no. 01418'19) of the 100th Legislature is enacted into law.