Alaska Statutes
Alaska Stat. § 12.47.100 (2026)
Incompetency to proceed
✓ current as of July 2026
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Sec. 12.47.100. Incompetency to proceed.
(a) A defendant who, as a result of mental disease or defect, is incompetent because the defendant is unable to understand the proceedings against the defendant or to assist in the defendant's own defense may not be tried, convicted, or sentenced for the commission of a crime so long as the incompetency exists.
(b) If, before imposition of sentence, the prosecuting attorney or the attorney for the defendant has reasonable cause to believe that the defendant is presently suffering from a mental disease or defect that causes the defendant to be unable to understand the proceedings or to assist in the person's own defense, the attorney may file a motion for a judicial determination of the competency of the defendant. Upon that motion, or upon its own motion, the court, if justified by findings of fact and conclusions of law, shall have the defendant examined by at least one qualified psychiatrist or psychologist, who shall report to the court concerning the competency of the defendant. For the purpose of the examination, the court may order the defendant committed for a reasonable period to a suitable hospital or other facility designated by the court. If the report of the psychiatrist or psychologist indicates that the defendant is incompetent, the court shall hold a hearing, upon due notice, at which evidence as to the competency of the defendant may be submitted, including that of the reporting psychiatrist or psychologist, and make appropriate findings. Before the hearing, the court shall, upon request of the prosecuting attorney, order the defendant to submit to an additional evaluation by a psychiatrist or psychologist designated by the prosecuting attorney.
(c) A defendant is presumed to be competent. The party raising the issue of competency bears the burden of proving the defendant is incompetent by a preponderance of the evidence. When the court raises the issue of competency, the burden of proving the defendant is incompetent shall be on the party who elects to advocate for a finding of incompetency. The court shall then apply the preponderance of the evidence standard to determine whether the defendant is competent.
(d) A statement made by the defendant in the course of an examination into the person's competency under this section, whether the examination is with or without the consent of the defendant, may not be admitted in evidence against the defendant on the issue of guilt in a criminal proceeding unless the defendant later relies on a defense under AS 12.47.010 or 12.47.020. A finding by the judge that the defendant is competent to stand trial in no way prejudices the defendant in a defense based on insanity; the finding may not be introduced in evidence on that issue or otherwise be brought to the notice of the jury.
(e) In determining whether a person has sufficient intellectual functioning to adapt or cope with the ordinary demands of life, the court shall consider whether the person has obtained a driver's license, is able to maintain employment, or is competent to testify as a witness under the Alaska Rules of Evidence.
(f) In determining if the defendant is unable to understand the proceedings against the defendant, the court shall consider, among other factors considered relevant by the court, whether the defendant understands that the defendant has been charged with a criminal offense and that penalties can be imposed; whether the defendant understands what criminal conduct is being alleged; whether the defendant understands the roles of the judge, jury, prosecutor, and defense counsel; whether the defendant understands that the defendant will be expected to tell defense counsel the circumstances, to the best of the defendant's ability, surrounding the defendant's activities at the time of the alleged criminal conduct; and whether the defendant can distinguish between a guilty and not guilty plea.
(g) In determining if the defendant is unable to assist in the defendant's own defense, the court shall consider, among other factors considered relevant by the court, whether the defendant's mental disease or defect affects the defendant's ability to recall and relate facts pertaining to the defendant's actions at times relevant to the charges and whether the defendant can respond coherently to counsel's questions. A defendant is able to assist in the defense even though the defendant's memory may be impaired, the defendant refuses to accept a course of action that counsel or the court believes is in the defendant's best interest, or the defendant is unable to suggest a particular strategy or to choose among alternative defenses.
(h) In a hearing to determine competency under this section, the court may, at the court's discretion, allow a witness, including a psychiatrist or psychologist who examined the defendant, to testify concerning the competency of the defendant by contemporaneous two-way video conference if the witness is in a place from which people customarily travel by air to the court, and the procedure allows the parties a fair opportunity to examine the witness. The video conference technician shall be the only person in the presence of the witness unless the court, at the court's discretion, determines that another person may be present. Any person present with the witness must be identified on the record. In this subsection, “contemporaneous two-way video conference”
(1) means a conference among people at different places by means of transmitted audio and video signals;
(2) includes all communication technologies that allow people at two or more places to interact by two-way video and audio transmissions simultaneously.
(i) The court may order a defendant to be examined under this section at an outpatient clinic or other facility as a condition of the defendant's release under AS 12.30. In considering the conditions of a defendant's release under this subsection, the court shall, in addition to any applicable requirement under AS 12.30, consider
(1) any medical information provided by the Department of Family and Community Services;
(2) the defendant's mental condition;
(3) the defendant's level of need for evaluation and treatment under this chapter;
(4) the defendant's ability to participate in outpatient treatment; and
(5) the defendant's history of evaluation and treatment under this chapter.
(j) If the defendant is charged with a felony offense against a person under AS 11.41 or felony arson, a qualified psychiatrist or psychologist conducting an examination under (b) of this section may, at the same time, evaluate the defendant to determine whether the defendant meets the standards for involuntary commitment under AS 47.30.700 — 47.30.915.
(k) In making findings of fact and conclusions of law under (b) of this section, a court may rely on a defense attorney's representation.
(a) A defendant who, as a result of mental disease or defect, is incompetent because the defendant is unable to understand the proceedings against the defendant or to assist in the defendant's own defense may not be tried, convicted, or sentenced for the commission of a crime so long as the incompetency exists.
(b) If, before imposition of sentence, the prosecuting attorney or the attorney for the defendant has reasonable cause to believe that the defendant is presently suffering from a mental disease or defect that causes the defendant to be unable to understand the proceedings or to assist in the person's own defense, the attorney may file a motion for a judicial determination of the competency of the defendant. Upon that motion, or upon its own motion, the court, if justified by findings of fact and conclusions of law, shall have the defendant examined by at least one qualified psychiatrist or psychologist, who shall report to the court concerning the competency of the defendant. For the purpose of the examination, the court may order the defendant committed for a reasonable period to a suitable hospital or other facility designated by the court. If the report of the psychiatrist or psychologist indicates that the defendant is incompetent, the court shall hold a hearing, upon due notice, at which evidence as to the competency of the defendant may be submitted, including that of the reporting psychiatrist or psychologist, and make appropriate findings. Before the hearing, the court shall, upon request of the prosecuting attorney, order the defendant to submit to an additional evaluation by a psychiatrist or psychologist designated by the prosecuting attorney.
(c) A defendant is presumed to be competent. The party raising the issue of competency bears the burden of proving the defendant is incompetent by a preponderance of the evidence. When the court raises the issue of competency, the burden of proving the defendant is incompetent shall be on the party who elects to advocate for a finding of incompetency. The court shall then apply the preponderance of the evidence standard to determine whether the defendant is competent.
(d) A statement made by the defendant in the course of an examination into the person's competency under this section, whether the examination is with or without the consent of the defendant, may not be admitted in evidence against the defendant on the issue of guilt in a criminal proceeding unless the defendant later relies on a defense under AS 12.47.010 or 12.47.020. A finding by the judge that the defendant is competent to stand trial in no way prejudices the defendant in a defense based on insanity; the finding may not be introduced in evidence on that issue or otherwise be brought to the notice of the jury.
(e) In determining whether a person has sufficient intellectual functioning to adapt or cope with the ordinary demands of life, the court shall consider whether the person has obtained a driver's license, is able to maintain employment, or is competent to testify as a witness under the Alaska Rules of Evidence.
(f) In determining if the defendant is unable to understand the proceedings against the defendant, the court shall consider, among other factors considered relevant by the court, whether the defendant understands that the defendant has been charged with a criminal offense and that penalties can be imposed; whether the defendant understands what criminal conduct is being alleged; whether the defendant understands the roles of the judge, jury, prosecutor, and defense counsel; whether the defendant understands that the defendant will be expected to tell defense counsel the circumstances, to the best of the defendant's ability, surrounding the defendant's activities at the time of the alleged criminal conduct; and whether the defendant can distinguish between a guilty and not guilty plea.
(g) In determining if the defendant is unable to assist in the defendant's own defense, the court shall consider, among other factors considered relevant by the court, whether the defendant's mental disease or defect affects the defendant's ability to recall and relate facts pertaining to the defendant's actions at times relevant to the charges and whether the defendant can respond coherently to counsel's questions. A defendant is able to assist in the defense even though the defendant's memory may be impaired, the defendant refuses to accept a course of action that counsel or the court believes is in the defendant's best interest, or the defendant is unable to suggest a particular strategy or to choose among alternative defenses.
(h) In a hearing to determine competency under this section, the court may, at the court's discretion, allow a witness, including a psychiatrist or psychologist who examined the defendant, to testify concerning the competency of the defendant by contemporaneous two-way video conference if the witness is in a place from which people customarily travel by air to the court, and the procedure allows the parties a fair opportunity to examine the witness. The video conference technician shall be the only person in the presence of the witness unless the court, at the court's discretion, determines that another person may be present. Any person present with the witness must be identified on the record. In this subsection, “contemporaneous two-way video conference”
(1) means a conference among people at different places by means of transmitted audio and video signals;
(2) includes all communication technologies that allow people at two or more places to interact by two-way video and audio transmissions simultaneously.
(i) The court may order a defendant to be examined under this section at an outpatient clinic or other facility as a condition of the defendant's release under AS 12.30. In considering the conditions of a defendant's release under this subsection, the court shall, in addition to any applicable requirement under AS 12.30, consider
(1) any medical information provided by the Department of Family and Community Services;
(2) the defendant's mental condition;
(3) the defendant's level of need for evaluation and treatment under this chapter;
(4) the defendant's ability to participate in outpatient treatment; and
(5) the defendant's history of evaluation and treatment under this chapter.
(j) If the defendant is charged with a felony offense against a person under AS 11.41 or felony arson, a qualified psychiatrist or psychologist conducting an examination under (b) of this section may, at the same time, evaluate the defendant to determine whether the defendant meets the standards for involuntary commitment under AS 47.30.700 — 47.30.915.
(k) In making findings of fact and conclusions of law under (b) of this section, a court may rely on a defense attorney's representation.
Notes of Decisions
Cited in 15
cases (3 in the last 5 years), 1984–2024 · leading case: Martin Dennis Victor IV v. State of Alaska, 516 P.3d 506 (Alaska Ct. App. 2022).
Martin Dennis Victor IV v. State of Alaska, 516 P.3d 506 (Alaska Ct. App. 2022). “110(b) — and then, after these charges were re-initiated, the District Attorney’s Office would ask the court to order a new competency evaluation under AS 12.47.100 and 110. In response to the government’s new litigation position, Victor’s attorney argued that it would be…”
Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017). “When his counsel asked him to tell the court what happened, Pieniazek replied "What’s supposed to happen?” "I don't know,” and "I would like to know when I can *624 leave from here.” The court attempted to ask him if he wanted to say anything about what happened and, after the…”
Adams v. State, 829 P.2d 1201 (Alaska Ct. App. 1992). “After a preliminary examination of Adams by Department of Corrections psychologist Robert Roland yielded inconclusive results, Judge Pegues referred Adams to the Alaska Psychiatric Institute for a psychiatric evaluation in accordance with AS 12.47.100. Adams was evaluated by Dr.…”
J.K. v. State of Alaska, 469 P.3d 434 (Alaska Ct. App. 2020). “110(a) (“When the trial court determines by a preponderance of the evidence, in accordance with AS 12.47.100, that a defendant is so incompetent that the defendant is unable to understand the proceedings against the defendant or to assist in the defendant’s own defense, the…”
Burks v. State, 748 P.2d 1178 (Alaska Ct. App. 1988). “, AS 12.47.100(b). There was substantial evidence in the record from which the trial court could have doubted Burks' competency.”
Keller v. State, 84 P.3d 1010 (Alaska Ct. App. 2004). “[2] See Criminal Rule 40(a): "Except as otherwise specifically provided ..., in computing any period of time, the day of the act or event from which the designated period of time begins to run is not to be included.”
Gamble v. State, 334 P.3d 714 (Alaska Ct. App. 2014). “Instead, the defense attorney repeated his previous argument-that the nature of Gamble's delusions alone made Gamble incompetent to stand trial, and that the case should be dismissed on that basis.”
Samaniego v. City of Kodiak, 80 P.3d 216 (Alaska 2003). “070 (requiring psychiatric or psychological exam and report if criminal defendant files notice of intent to rely upon insanity defense); AS 12.47.100 (requiring psychiatric or psychological examination and report concerning criminal defendant's competency to understand…”
Diggs v. State, 274 P.3d 504 (Alaska Ct. App. 2012). “AS 12.47.100(b). 4 . Id. 5 . Id. 6 . Id. 7 .”
Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993). “Monroe cites AS 12.47.100, which governs competency examinations in criminal cases.”
McCarlo v. State, 677 P.2d 1268 (Alaska Ct. App. 1984). “100(a) was subsequently revised to eliminate references to gender and has been renumbered AS 12.47.100. The substance of the provision remains unchanged.”
State of Maine v. Travis R. Gerrier, 2018 ME 160 (Me. 2018). “During the pendency of this case, Gerrier was charged in a separate action with violating conditions of release and tampering with a witness-the victim.”
— Alaska Stat. § 12.47.100(a) — 6 cases
J.K. v. State of Alaska, 469 P.3d 434 (Alaska Ct. App. 2020). “110(a) (“When the trial court determines by a preponderance of the evidence, in accordance with AS 12.47.100, that a defendant is so incompetent that the defendant is unable to understand the proceedings against the defendant or to assist in the defendant’s own defense, the…”
Martin Dennis Victor IV v. State of Alaska, 516 P.3d 506 (Alaska Ct. App. 2022). “110(b) — and then, after these charges were re-initiated, the District Attorney’s Office would ask the court to order a new competency evaluation under AS 12.47.100 and 110. In response to the government’s new litigation position, Victor’s attorney argued that it would be…”
Gamble v. State, 334 P.3d 714 (Alaska Ct. App. 2014). “Instead, the defense attorney repeated his previous argument-that the nature of Gamble's delusions alone made Gamble incompetent to stand trial, and that the case should be dismissed on that basis.”
Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017). “When his counsel asked him to tell the court what happened, Pieniazek replied "What’s supposed to happen?” "I don't know,” and "I would like to know when I can *624 leave from here.” The court attempted to ask him if he wanted to say anything about what happened and, after the…”
McCarlo v. State, 677 P.2d 1268 (Alaska Ct. App. 1984). “100(a) was subsequently revised to eliminate references to gender and has been renumbered AS 12.47.100. The substance of the provision remains unchanged.”
— Alaska Stat. § 12.47.100(b) — 9 cases
Martin Dennis Victor IV v. State of Alaska, 516 P.3d 506 (Alaska Ct. App. 2022). “110(b) — and then, after these charges were re-initiated, the District Attorney’s Office would ask the court to order a new competency evaluation under AS 12.47.100 and 110. In response to the government’s new litigation position, Victor’s attorney argued that it would be…”
Burks v. State, 748 P.2d 1178 (Alaska Ct. App. 1988). “, AS 12.47.100(b). There was substantial evidence in the record from which the trial court could have doubted Burks' competency.”
Keller v. State, 84 P.3d 1010 (Alaska Ct. App. 2004). “[2] See Criminal Rule 40(a): "Except as otherwise specifically provided ..., in computing any period of time, the day of the act or event from which the designated period of time begins to run is not to be included.”
Diggs v. State, 274 P.3d 504 (Alaska Ct. App. 2012). “AS 12.47.100(b). 4 . Id. 5 . Id. 6 . Id. 7 .”
Gamble v. State, 334 P.3d 714 (Alaska Ct. App. 2014). “Instead, the defense attorney repeated his previous argument-that the nature of Gamble's delusions alone made Gamble incompetent to stand trial, and that the case should be dismissed on that basis.”
— Alaska Stat. § 12.47.100(c) — 2 cases
Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017). “When his counsel asked him to tell the court what happened, Pieniazek replied "What’s supposed to happen?” "I don't know,” and "I would like to know when I can *624 leave from here.” The court attempted to ask him if he wanted to say anything about what happened and, after the…”
Martin Dennis Victor IV v. State of Alaska, 516 P.3d 506 (Alaska Ct. App. 2022). “110(b) — and then, after these charges were re-initiated, the District Attorney’s Office would ask the court to order a new competency evaluation under AS 12.47.100 and 110. In response to the government’s new litigation position, Victor’s attorney argued that it would be…”
— Alaska Stat. § 12.47.100(e) — 1 case
Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017). “When his counsel asked him to tell the court what happened, Pieniazek replied "What’s supposed to happen?” "I don't know,” and "I would like to know when I can *624 leave from here.” The court attempted to ask him if he wanted to say anything about what happened and, after the…”
— Alaska Stat. § 12.47.100(f) — 1 case
Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017). “When his counsel asked him to tell the court what happened, Pieniazek replied "What’s supposed to happen?” "I don't know,” and "I would like to know when I can *624 leave from here.” The court attempted to ask him if he wanted to say anything about what happened and, after the…”
— Alaska Stat. § 12.47.100(g) — 1 case
Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017). “When his counsel asked him to tell the court what happened, Pieniazek replied "What’s supposed to happen?” "I don't know,” and "I would like to know when I can *624 leave from here.” The court attempted to ask him if he wanted to say anything about what happened and, after the…”
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