33-5-410 - Discharge proceedings for criminal defendant involuntarily committed to mental retardation facility. - Tennessee Statutes

33-5-410. Discharge proceedings for criminal defendant involuntarily committed to mental retardation facility.

(a)  Whenever a mental retardation facility determines that a person, who has been committed under § 33-5-403 by a criminal court in connection with a capital offense or with a verdict of not guilty by reason of insanity on a capital offense, no longer meets the commitment standards under which the person was committed, it shall follow the procedures set out in this section to effect the person's release from involuntary commitment.

(b)  When the mental retardation facility determines that the person no longer meets the commitment criteria under which the person was committed, it shall notify the committing court of this fact and the reasons. The determination by the department shall create a rebuttable presumption of its correctness. The court may, within ten (10) days of receipt of the notice, set a hearing to be held within twenty-one (21) days of receipt of the facility's notice on whether the person continues to meet the commitment criteria under which the person was committed. The court shall send notice of the hearing to the following: the person, chief officer of the facility, the person's counsel, the person's next of kin, and the district attorney general.

(c)  If the court does not set a hearing and notify the facility within fifteen (15) days of its receipt of the facility's notice, the facility shall release the person from involuntary commitment.

(d)  The hearing to determine whether the person continues to meet the commitment criteria under which the person was committed shall be held within twenty-one (21) days of the court's receipt of notice from the facility. The person shall attend the hearing unless the person's presence is waived in writing by counsel before the hearing. If the person does not have counsel, the court shall appoint counsel to represent the person.

(e)  Following the hearing, if the court finds by clear, unequivocal, and convincing evidence that the person meets the standards of § 33-5-403, it shall order the person's return to the mental retardation facility under the authority of the person's commitment. Otherwise, it shall order the person's release from commitment.

(f)  Either party may appeal a final adjudication under this section to the court of criminal appeals.

[Acts 1980, ch. 822, § 1; 1982, ch. 862, § 2; T.C.A., § 33-313; Acts 1984, ch. 922, § 6; T.C.A., § 33-5-310; Acts 2000, ch. 947, § 1.]