Situation: Class B defendant serves 180 days in pretrial detention, the last 30+ days of which are at the state hospital for restoration.

Question: Is the defendant entitled to release? 46B.0095 states that a person may not be committed for a period that exceeds the maximum period for which the person could have been sentenced had he been conficted. And, 46B.009 states that time credits extend to that period of confinement in the state hospital.

But, I can find no case precisely on point; none. There are, however, several federal cases on the issue that continued confinement must have some degree of rationality. And if the def cannot be confined further, there would be no point in tying up a bed (either locally or at the SH). As well, if the purpose of restoration is for disposition at trial, and if there is no trial, why continue the restoration/hospitalization -- unless the person meets civil criteria?

However, I see no statutory or caselaw requirement of release. Moreover, if still incompetent, the def could not be put on a PR bond. Have others dealt with this issue? John B.?

[This message was edited by Floyd L. Jennings on 08-27-09 at .]

If I am understanding correctly, the defendant has not yet been confined under 46B for 180 days, only about 30, so the law allows continued "restorative treatment." While it may not make much sense to continue with the criminal prosecution, when he will just get "credit for time served" as the penalty, does he not remain subject to trial and thus still under 46B ? 46B.010 is strangely worded, making dismissal dependent on a motion by the State. Does it provide a defense to prosecution (more like a shortened statute of limitations)? You have an interesting situation on your hands.

[This message was edited by Martin Peterson on 09-02-09 at .]

This situation explains why the State is pushing for expanded development of out-patient competency restoration. Doesn't sound like a very good use of State resources to hold misdemeanor defendant in very expensive State bed for limited purpose of getting him to trial on a case for which he has already accrued full credit against a maximum sentence.

But, if the State is determined to have a trial, yes, competency must be restored. Perhaps the defendant should be released on a bond with conditions of attending an out-patient competency restoration program. But then not every community has those resources.