I have a Def whose case was dismissed when he was deemed incompetent. New evidence came to light that he may be competent now. I'm assuming I need to file a motion to redetermine competency before I can reindict. Is this correct? If so, does anyone have a motion to redetermine Def's compentency?

Thanks

You reindict. And now, because of the prior finding of incompetency, you have the burden of proving competency.

And because the defendant now enjoys a presumption of incompetence under Schaffer, 583 S.W.2d at 630, you will have to address the issue even if it is not raised (again) by the Defendant. This, of course, also prevents the State from trying to get around the prior finding merely by re-indicting. In fact, you now have the heavy burden of showing competency beyond a reasonable doubt. Manning, 730 S.W.2d 744.

And beware the Jan. 1, 2004 effective date for new CCP Ch. 46B, the new competency laws. The enacting language of the new law says that the old law still applies to "a defendant against whom proceedings have been initiated under Art. 46.02 ..." prior to 1/1/04, but I'm not sure what effect your dismissal and reindictment has on the continuity of "proceedings." Does it mean anyone ever subject to 46.02 is governed by 46.02 in perpetuity? Or is it case-specific? Indictment-specific? Anyone care to hazard a guess?