Constitutionality.

- Placement of the burden of proof on the defendant to prove incompetence by a preponderance of the evidence does not violate due process. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).

Nature of automatic commitment under O.C.G.A. § 17-7-130(c) applicable to all those defendants who had been accused of violent crimes and found to be mentally incompetent to stand trial was held to not bear a reasonable relationship to the state's purpose of accurately determining the restorability of the individual defendants' competency to stand trial, thus, that aspect of O.C.G.A. § 17-7-130(c) violated due process. McGouirk v. State, 303 Ga. 881, 815 S.E.2d 825 (2018).

Because the nature of automatic commitment does not bear a reasonable relation to the state's purpose of accurately determining the restorability of individual defendants' competency to stand trial, that aspect of O.C.G.A. § 17-7-130(c) violated due process when applied to the defendants who have been deprived of their liberty based solely on that statutory provision. O.C.G.A. § 17-7-130(c) should be construed as limiting the detention authorized to the reasonable time needed to fulfill the statute's purpose of determining a defendant's competency to stand trial. Carr v. State, 303 Ga. 853, 815 S.E.2d 903 (2018).

Georgia Supreme Court agreed that indefinite or even unreasonably extended detention under O.C.G.A. § 17-7-130(c) for incompetency to stand trial would be unconstitutional, but the Court does not agree that the statute permits such extended detention. Instead, to avoid that constitutional concern, the Court construes § 17-7-130(c) as limiting the detention the statute authorizes to the reasonable time needed to fulfill the statute's purpose. Carr v. State, 303 Ga. 853, 815 S.E.2d 903 (2018).

Automatic detention without an individualized determination of whether the confinement reasonably advances the government's purpose violated a defendant's right to due process, and the Georgia Supreme Court therefore held that O.C.G.A. § 17-7-130(c) could not be applied constitutionally to defendants who are not already being detained on another, lawful ground. Carr v. State, 303 Ga. 853, 815 S.E.2d 903 (2018).

Trial of person in state of insanity forbidden.

- Former Code 1933, § 27-1504, which guaranteed that one charged with crime would not be tried while in a condition of insanity, and former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130), which secured to such individual the right to have the question of the individual's mental condition at the time of the trial inquired into before being required to plead to the indictment, are declaratory of the common-law rule which forbids the trial of any person while the person is in a state of insanity. The reason upon which such rule rested at common law, that is, the incapacity of one who is insane to make a rational defense, furnished the guiding principle for their proper application. Brown v. State, 215 Ga. 784, 113 S.E.2d 618 (1960).

Section was declaratory of the common law which forbid the trial of persons while in the state of insanity, that is, incapable of making a rational defense. Cronch v. State, 141 Ga. App. 851, 235 S.E.2d 40 (1977).

For history of former Code 1933, §§ 27- 1502 and 27-1504 (see O.C.G.A. § 17-7-130), see Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

Section impliedly repeals Code 1933,

§ 27-1504. - "Mental incompetency" as used in former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130) included those mental states embraced in the terms "lunatic" and "insane person" in former Code 1933, § 27-1504, as those terms all relate solely to the mental ability or capacity of a defendant to intelligently participate in the defendant's trial. Thus, the amendment by Ga. L. 1977, p. 1293, by implication repealed former Code 1933, § 27-1504. If this were not true, a defendant could enter a special plea of mental incompetency under former Code 1933, § 27-1502, another plea of "lunacy" under former Code 1933, § 27-1504, and a third plea of "insanity at the time of trial" under former Code 1933, § 27-1504, and demand a special jury trial on all three issues even though all three relate to the same mental state. No such result was envisioned by the General Assembly. Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

Choice between proceeding under § 16-3-2 or § 17-7-130. - Special plea of insanity under former Code 1933, § 26-702 (see O.C.G.A. § 16-3-2) was proper if the defendant became insane since the crime was committed or was insane at the time of the trial. A plea of insanity may be taken advantage of under the general issue under former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130) if the defendant was insane prior to the time the alleged crime was committed or was insane at the time the crime was alleged to have been committed. Orange v. State, 77 Ga. App. 36, 47 S.E.2d 756 (1948).

"Mental competence" relates only to the ability of the defendant, at the time of the trial, to intelligently participate in the defendant's trial. Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

Cause of incompetency irrelevant.

- Provision of O.C.G.A. § 17-7-130 authorizing transfer of defendant to the Department of Human Resources applied to the defendant whose incompetency was the result of traumatic brain injury; such transfers are not limited only to cases when incompetency is the result of mental illness or retardation. Georgia Dep't of Human Resources v. Drust, 264 Ga. 514, 448 S.E.2d 364 (1994).

One mentally competent at time crime committed is culpable.

- Even if a habeas corpus petitioner was incompetent at the time of trial and is incompetent today, if the petitioner could be rendered competent in the future (even by forcing the petitioner to take medication), the petitioner could be lawfully tried, convicted, and sentenced to death once again because someone who is mentally competent (sane) when he or she commits a crime is culpable for that offense, even if his or her later incompetency prevents him or her (perhaps only temporarily) from being tried for the offense. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011).

Insanity and competence to stand trial are separate issues.

- Trial court erred in overruling the defendant's objection to the state's asking an expert witness whether the defendant was competent to stand trial because the defense of insanity and defendant's competence to stand trial are separate issues and the state made no showing that the expert's opinion as to defendant's competency to stand trial was relevant to the jury's decision on defendant's plea of not guilty by reason of insanity. Hudson v. State, 273 Ga. 124, 538 S.E.2d 751 (2000).

Duty of court to inquire into competency.

- Constitutional guarantees require that a trial court inquire into competency, even when state procedures for raising competency are not followed, if evidence of incompetence comes to the court's attention. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

While the statutory right to a special jury under O.C.G.A. § 17-7-130 can be waived, the actual issue of present incompetence must be addressed if there is evidence of incompetence which manifests itself during the proceedings. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

Trial court must conduct, sua sponte, a competency hearing when the information known to the trial court at the time of the trial or plea bargain is sufficient to raise a bona fide doubt regarding the defendant's competence. White v. State, 202 Ga. App. 424, 414 S.E.2d 328 (1992).

Requirement of a competency hearing is applicable even when the doubt regarding a defendant's competency arises during the course of a trial. White v. State, 202 Ga. App. 424, 414 S.E.2d 328 (1992).

When the defendant was convicted of various crimes but the trial court committed harmful error by failing to conduct an adequate inquiry into the defendant's competency, upon remand, if the court decides that a meaningful competency determination is not possible, the defendant is entitled to a new trial on the offenses charged and the defendant may again raise the issue of incompetence by special plea pursuant to O.C.G.A. § 17-7-130. Brogdon v. State, 220 Ga. App. 31, 467 S.E.2d 598 (1996).

Trial court did not err by failing to sua sponte rule on the defendant's competency as the defendant exhibited no unusual behavior during the proceedings, understood the nature and object of the proceedings, participated in the proceedings, and assisted counsel with the defense; the defendant failed to show that being a 14-year-old, standing alone, rendered the defendant incapable of understanding and participating in the proceedings. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005).

Part of judgment ordering the defendant's automatic detention for evaluation as to competency to stand trial under O.C.G.A. § 17-7-130(c) was vacated because it was necessary for the trial court to exercise the court's discretion in deciding whether the defendant should be committed into custody for evaluation or should be evaluated on an outpatient basis. McGouirk v. State, 303 Ga. 881, 815 S.E.2d 825 (2018).

Nature of relief afforded by plea.

- Relief afforded by a plea of insanity, if sustained, is of the nature of the relief afforded by a plea in abatement, which can only operate to suspend or put off further proceedings, as distinguished from an absolute and final bar to further prosecution. Spell v. State, 120 Ga. App. 398, 170 S.E.2d 701 (1969).

Defense of not guilty by reason of insanity differs from capacity to make a rational defense in that it is a part of the general issue as made by the defendant in the defendant's plea of not guilty. Cronch v. State, 141 Ga. App. 851, 235 S.E.2d 40 (1977).

Retroactive determination of competency.

- Superior court did not err by finding that the defendant's competency could be determined retroactively to the time of trial because the defendant expressly conceded, and indeed urged, that the defendant's competency at the time of trial could be retroactively determined and that there would be sufficient evidence for the superior court to make such determination; the defendant presented evidence at the competency hearing, and on which the defendant relied upon in the defendant's appeal, that the defendant was in fact incompetent at the time of the defendant's criminal trial; and the defendant waived the right to complain on appeal about hearing the issue of the defendant's competency. Tye v. State, 298 Ga. 474, 782 S.E.2d 10 (2016).

Directed verdict in competency trial.

- Trial court did not err in denying the defendant's motion for a directed verdict under O.C.G.A. § 9-11-50 in the defendant's competency trial because the evidence on competency was in conflict; even though the defendant's expert witness opined that the defendant was not competent to stand trial, the state's expert testified that the defendant was competent to do so. Smith v. State, 312 Ga. App. 174, 718 S.E.2d 43 (2011).

Cited in Scoggins v. State, 150 Ga. 72, 102 S.E. 520 (1920); Griffin v. State, 195 Ga. 368, 24 S.E.2d 399 (1943); Cardin v. Harmon, 217 Ga. 737, 124 S.E.2d 638 (1962); Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967); Lingo v. State, 224 Ga. 333, 162 S.E.2d 1 (1968); Taylor v. State, 229 Ga. 536, 192 S.E.2d 249 (1972); Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975); Myers v. State, 143 Ga. App. 195, 237 S.E.2d 662 (1977); Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980); Standridge v. State, 158 Ga. App. 482, 280 S.E.2d 850 (1981); Morrow v. State, 162 Ga. App. 183, 290 S.E.2d 137 (1982); Norris v. State, 250 Ga. 38, 295 S.E.2d 321 (1982); Brown v. State, 250 Ga. 66, 295 S.E.2d 727 (1982); Lindsey v. State, 252 Ga. 493, 314 S.E.2d 881 (1984); Davenport v. State, 170 Ga. App. 667, 317 S.E.2d 895 (1984); Edison v. State, 256 Ga. 67, 344 S.E.2d 231 (1986); Partridge v. State, 256 Ga. 602, 351 S.E.2d 635 (1987); Carter v. State, 257 Ga. 510, 361 S.E.2d 175 (1987); Brown v. State, 261 Ga. 66, 401 S.E.2d 492 (1991); Callaway v. State, 208 Ga. App. 508, 431 S.E.2d 143 (1993); Colwell v. State, 273 Ga. 634, 544 S.E.2d 120 (2001); Trammel v. Bradberry, 256 Ga. App. 412, 568 S.E.2d 715 (2002); Wafford v. State, 283 Ga. App. 154, 640 S.E.2d 727 (2007); Brower v. State, 334 Ga. App. 262, 779 S.E.2d 32 (2015).

Section provides right of inquiry into mental condition before pleading.

- This section secured to a person charged with a crime the right to have the question of the person's mental condition at the time of the trial inquired into before being required to plead to the indictment. Baughn v. State, 100 Ga. 554, 28 S.E. 68, aff'd sub nom. Nobles v. Georgia, 168 U.S. 398, 18 S. Ct. 87, 42 L. Ed. 515 (1897); Martin v. State, 147 Ga. App. 173, 248 S.E.2d 235 (1978).

If it be contended that the defendant is insane at the time of the defendant's trial, defendant has the right to have the question of defendant's mental condition at that time inquired into before being required to plead to the indictment. Humphrey v. State, 46 Ga. App. 720, 169 S.E. 53 (1933).

Test as to whether due process violated by failure to hold hearing.

- Courts focus on three factors in determining whether the trial court violated the defendant's procedural due process rights by failing to hold sua sponte a competency hearing: (1) evidence of the defendant's irrational behavior; (2) the defendant's demeanor at trial; and (3) prior medical opinion regarding the defendant's competence to stand trial. White v. State, 202 Ga. App. 424, 414 S.E.2d 328 (1992).

Trial court was not required to conduct a hearing to determine the defendant's competence to stand trial after the defendant withdrew the defendant's plea of mental incompetence, and nothing before the trial court raised any question about the defendant's competence to stand trial. Christenson v. State, 261 Ga. 80, 402 S.E.2d 41 (1991), cert. denied, 502 U.S. 855, 112 S. Ct. 166, 116 L. Ed. 2d 130 (1991).

Since the accused made no special plea pursuant to O.C.G.A. § 17-7-130 raising the issue of the accused's competency at the time of trial, and there was no evidence in the record raising sufficient doubt before or during the trial as to the accused competency, the due process requirement that the trial court conduct a competency hearing was not triggered. Huzzie v. State, 236 Ga. App. 192, 512 S.E.2d 5 (1999).

Competency hearing not mandated for juveniles tried as adults.

- Defendant's request that a competency hearing be mandated for all children under 17 who faced trial in the Georgia Superior Court under O.C.G.A. § 15-11-28(b)(2)(B) was rejected as any changes to Georgia's statutory provisions for trying certain juvenile offenders as adults had to come from the Georgia legislature. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005).

Trial court did not err by failing to conduct a hearing sua sponte to determine the defendant's competence to stand trial since the defendant did not file a plea of incompetence to stand trial and the defendant's testimony and the court-ordered evaluation showed that the defendant understood the nature and object of the proceedings against the defendant and was capable of assisting the defendant's attorney with a defense. Meders v. State, 260 Ga. 49, 389 S.E.2d 320 (1990), cert. denied, 506 U.S. 837, 113 S. Ct. 114, 121 L. Ed. 2d 71 (1992).

In a prosecution for felony murder and aggravated assault, neither the defendant's conduct at trial or before trial, nor any medical evidence, required the trial court, sua sponte, to conduct a hearing on the defendant's competency because there was no evidence of irrational behavior or unusual demeanor, nor was there any medical opinion about competence which would have caused the trial court to make further inquiry about competency. Traylor v. State, 280 Ga. 400, 627 S.E.2d 594 (2006).

After having considered a competency evaluation of the defendant, the trial court concluded, without further inquiry, that the defendant was competent, and absent evidence that counsel never filed a special plea of not guilty by reason of insanity or incompetence to stand trial, the appeals court found no additional inquiry was necessary; thus, given that the record did not demonstrate that the defendant's behavior at trial or medical history should have caused the trial court to, sua sponte, conduct a competency hearing, no error resulted from failing to hold a competency hearing. Freeman v. State, 282 Ga. App. 185, 638 S.E.2d 358 (2006).

Failure to order hearing held error.

- When the defendant, who had an IQ of 49, was determined by the court to be mentally incompetent to waive a plea of not guilty, the trial court erred in not ordering a hearing on defendant's competence to stand trial. Holloway v. State, 257 Ga. 620, 361 S.E.2d 794 (1987).

In a motion for a new trial motion, which raised a substantive claim of incompetency and presented expert evidence, it was error for the trial court to require the defendant to prove incompetency by clear and convincing evidence before further hearing on the issue and a decision on the substantive claim was warranted as this claim could be raised in a new trial motion and the defendant's burden of proof was by a preponderance of the evidence. Traylor v. State, 280 Ga. 400, 627 S.E.2d 594 (2006).

With regard to a defendant's convictions for aggravated assault, terroristic threats, and burglary, the judgment of conviction was reversed and the case was remanded to the trial court since the trial court erred by failing to conduct a competency hearing. Although defense counsel never filed a written plea that the defendant was mentally incompetent to stand trial, based on defense counsel's detailed concerns regarding the defendant's competency and the defendant's absolute refusal to be evaluated, the trial court should have continued the matter and conducted a competency hearing. Phelps v. State, 296 Ga. App. 362, 674 S.E.2d 620 (2009).

Special trial on issue of sanity is in nature of a civil proceeding with the burden resting upon the defendant to show insanity. Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981).

Sub silentio determination of competency.

- If the trial court made a sub silentio determination that the defendant was competent to stand trial, the court was authorized to accept the defendant's plea of guilty but mentally ill, although the better course of action would have been for the trial court to make an explicit finding of competency to stand trial or for the defendant to have withdrawn the defendant's plea of mental incompetency, such specific findings were not legally required as long as some determination was made on the issue of competence. Hughes v. Hall, 276 Ga. 382, 578 S.E.2d 888 (2003).

Nature of issue raised by plea.

- Issue raised by a special plea of insanity is whether the defendant is capable at the time of the trial of understanding the nature and object of the proceedings going on against the defendant and rightly comprehends the defendant's own condition in reference to such proceedings, and is capable of rendering the defendant's attorney such assistance as a proper defense to the indictment returned against the defendant demands. Brown v. State, 215 Ga. 784, 113 S.E.2d 618 (1960); Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977); Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980).

Issue is not whether defendant can distinguish right and wrong.

- Issue raised by a special plea of insanity at the time of trial is not whether the defendant can distinguish between right and wrong. Brown v. State, 215 Ga. 784, 113 S.E.2d 618 (1960); Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977).

Standard by which defendant evaluated.

- Special plea of insanity at the time of trial raises the question of whether the defendant is mentally competent at that time to understand the nature and object of the proceedings against the defendant, whether the defendant comprehends the defendant's own condition in reference to the proceedings, and whether the defendant is capable of rendering the defendant's attorney proper assistance; the defendant must, in other words, be aware of the charge, aware of the charge's consequences, and able to communicate with the defendant's lawyer. Allanson v. State, 158 Ga. App. 77, 279 S.E.2d 316 (1981).

It is error for trial judge to submit in charge to the jury the "right and wrong" test as the proper basis for determining the competency of the defendant to stand trial on the indictment for murder on the issue made by the special plea of insanity. Brown v. State, 215 Ga. 784, 113 S.E.2d 618 (1960).

Only one pretrial issue relates to the ability or capacity of a defendant to participate in the defendant's trial; that issue was defendant's mental competence. Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

Whether the defendant is guilty or not guilty of the crime charged is not relevant at the trial of a special plea of insanity. Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977).

Test on a special plea of insanity is whether or not the movant is incompetent to stand trial at the particular time of the trial of the special plea and not whether or not the defendant has a lack of memory relating to some prior specific event. Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980).

Test for delusional compulsion.

- One is not criminally responsible when, though one has reason sufficient to distinguish between right and wrong as to a particular act about to be committed, yet, in consequence of some delusion, the will is overmastered and there is no criminal intent, provided that the act itself is connected with the peculiar delusion under which one is laboring. Hargroves v. State, 179 Ga. 722, 177 S.E. 561 (1934).

Essential allegations of plea and procedure.

- Special plea of insanity provided by this section must allege that the accused was insane at the time of trial and the issue thus made must be tried by a special jury. If found to be true, the court would order the defendant to be delivered to the superintendent of the Milledgeville State Hospital (now Department of Human Resources). Bailey v. State, 210 Ga. 52, 77 S.E.2d 511 (1953).

Object of the plea of insanity (now mental incompetency) is to prevent a trial on the merits, and though it may cover insanity (now mental incompetency) at the time of the act, the plea's essence is that the prisoner is insane (now mentally incompetent) at the trial, and the plea must contain that allegation. Long v. State, 38 Ga. 491 (1868).

Mental incompetency at time offense committed is provable under the general issue. Danforth v. State, 75 Ga. 614 (1885); Carr v. State, 96 Ga. 284, 22 S.E. 570 (1895).

Cross-examination of defendant by the state.

- Since this section was not a criminal sanction, and the proceeding was civil in nature, the state may call the defendant for purpose of cross-examination on the trial of the special plea of insanity. However, no question may be propounded to the accused or inquiry be made upon the hearing touching the matter of the defendant's guilt or innocence. Bacon v. State, 222 Ga. 151, 149 S.E.2d 111 (1966), commented on in 18 Mercer L. Rev. 506.

No duty to impanel special jury absent plea.

- Absent a special plea of insanity, there is no mandatory duty on the trial judge to impanel a special jury to determine the issue of mental incompetency or insanity. Ricks v. State, 240 Ga. 853, 242 S.E.2d 604 (1978).

If a special plea is not filed, then the court is not bound by the procedures set forth in O.C.G.A. § 17-7-130. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

Excusing jurors from competency hearing.

- Trial court did not abuse the court's discretion by excusing a potential juror during jury selection for a competency hearing and by failing to excuse a second juror because the first juror expressed an inability to judge the defendant's competency on the merits, and after the second juror expressed a willingness to be fair, the trial court found that the juror had no fixed opinion about the defendant's guilt. Smith v. State, 312 Ga. App. 174, 718 S.E.2d 43 (2011).

Due process requires procedures adequate to protect incompetent from standing trial.

- Failure to observe procedures adequate to protect an accused's right not to be tried or convicted while incompetent to stand trial deprives the accused of the accused's due process right to a fair trial. Ricks v. State, 240 Ga. 853, 242 S.E.2d 604 (1978).

In addition to the common law and statutory rights of a defendant not to be tried while incompetent, the accused also has a constitutional right to not be put on trial while incompetent, and procedural due process requires the trial court to afford the accused an adequate hearing on the issue of competency. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

Raising issue of insanity if plea not filed.

- If there is no special plea of insanity, this section, requiring a special trial of that issue when a special plea is filed, is not applicable and the issue of insanity can be raised and tried under the plea of general issue of not guilty. Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967).

Entering plea of not guilty by reason of insanity if plea of incompetency not entered.

- If a defendant fails to enter a special plea of incompetency to stand trial, instead entering only a plea of not guilty by reason of insanity, the defendant puts in issue the defendant's sanity at the time of commission of the offense, not the defendant's competency to stand trial. Chenault v. Stynchcombe, 546 F.2d 1191 (5th Cir.), cert. denied, 434 U.S. 878, 98 S. Ct. 231, 54 L. Ed. 2d 158 (1977).

Motion for psychiatric examination if special plea not filed.

- If a motion is made to have the defendant's mental competency examined by a psychiatrist, but no special plea of insanity is filed, the trial court under such circumstance does not err in failing to have a judicial determination made of the defendant's sanity prior to the trial on the indictment. Coffee v. State, 230 Ga. 123, 195 S.E.2d 897 (1973).

If no special plea of insanity is filed, the granting of the motion for a psychiatric examination is within the sound discretion of the trial court. This rule attaches in probation revocation hearings as well as in criminal proceedings. Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980).

Since no special plea was brought before the court, the trial court did not abuse the court's discretion in failing, sua sponte, to order a special hearing on mental competency on the basis of the testimony presented at trial. Dowdy v. State, 169 Ga. App. 14, 311 S.E.2d 184 (1983).

Motion for continuance to procure further psychiatric examination.

- When a motion for a continuance to procure further psychiatric examination is based on evidence that reasonably indicates mental instability on the part of the defendant at the time of the offense or at the time of trial and when the motion is not made for the mere purpose of delay and avoidance of prosecution, the interests of justice might be better served if the trial court's discretion were exercised in favor of the defendant, even when no special plea of insanity has been filed by counsel. Morgan v. State, 135 Ga. App. 139, 217 S.E.2d 175, rev'd on other grounds, 235 Ga. 632, 221 S.E.2d 47, overruled on other grounds, Dent v. State, 136 Ga. App. 366, 221 S.E.2d 228, overruled on other grounds, Davis v. State, 136 Ga. App. 749, 222 S.E.2d 188 (1975).

State free to proceed with trial if plea not sustained.

- If a plea of insanity is not sustained the law is silent as to further action, clearly implying that the state is free to proceed with the trial. Spell v. State, 120 Ga. App. 398, 170 S.E.2d 701 (1969).

Proceeding to trial upon decision on plea adverse to defendant.

- After a special plea of insanity has been decided by a jury adversely to the party indicted, it is not error for the trial judge to proceed with the trial of the main case. Watson v. State, 229 Ga. 787, 194 S.E.2d 407 (1972).

Waiver of right to present expert testimony on insanity.

- Defendant may invoke the defendant's privilege against self-incrimination, refuse to submit to an examination by an independent expert, and thereby forego the right to present expert testimony on the issue of insanity. Strickland v. State, 257 Ga. 230, 357 S.E.2d 85 (1987).

Questions going to guilt or innocence may be objectionable in a special proceeding to determine the sanity or insanity of a criminal defendant. Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981).

Motion for psychiatric examination if special plea not filed.

- Since defense counsel did not file a special pretrial plea of insanity or mental incompetency to be tried pursuant to O.C.G.A. § 17-7-130, the trial court had no mandatory duty to impanel a special jury to determine that issue pursuant to defense counsel's midtrial motion for a psychiatric evaluation. Lightsey v. State, 188 Ga. App. 801, 374 S.E.2d 335 (1988).

Trial court need not have held a separate hearing on competency in the absence of a special plea of incompetency by a defendant when the trial court had been concerned enough about the issue of competency to independently order an evaluation of the defendant and when there had been testimony by two experts as to a defendant's competency. The fact that the court allowed the trial to go forward after testimony concerning defendant's competency was in effect a sub silentio finding that defendant was competent. Harris v. State, 256 Ga. 350, 349 S.E.2d 374 (1986).

Superior court has authority to civilly commit a pretrial detainee who is incompetent to stand trial as long as the court utilizes the criteria and procedures set forth in O.C.G.A. Ch. 3, T. 37 in making the court's decision. Department of Human Resources v. Long, 217 Ga. App. 763, 458 S.E.2d 914 (1995).

Procedural default when a failure to pursue competency.

- Habeas court correctly concluded that the petitioner's claim that the petitioner was tried while incompetent was barred by procedural default under O.C.G.A. § 9-14-48(d) because the claim was not pursued to a conclusion at trial and was not raised on direct appeal; for purposes of determining whether the procedural default doctrine will apply, there is no meaningful distinction between the failure to exercise a defendant's right to have his or her competence determined in the trial court and the failure to exercise a defendant's additional right to have a competency determination evaluated on appeal, and substantive claims of incompetence to stand trial will continue to be subject to procedural default in Georgia. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011).

Refusal to provide defendant with psychiatrist for hearing on plea.

- Hearing upon a special plea of insanity is a proceeding of a civil nature in which the burden rests on the defendant to produce evidence of the defendant's insanity. Thus, the refusal of a trial court to provide for examination by and assistance to the accused by a competent psychiatrist selected by the accused, discloses no violation of due process or error for any other reason. May v. State, 146 Ga. App. 416, 246 S.E.2d 432 (1978).

When a defendant's "rap sheet" failed to disclose an earlier conviction and court order finding the defendant incompetent to stand trial, and the defendant did not inform the defendant's attorney of the fact, the trial court in this action had no reason to conduct an investigation of the defendant's competence sua sponte, and the court's denial of funds for an independent psychiatrist was not error. Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990), cert. denied, 498 U.S. 1041, 111 S. Ct. 714, 112 L. Ed. 2d 703 (1991).

Denial of psychiatric examination at county expense when plea not entered at time of trial.

- It is not error for a trial court to deny the defendant's motion requesting that the defendant be examined by a psychiatrist at county expense when the defendant has not entered a special plea of insanity at the time of trial. Huguley v. State, 120 Ga. App. 332, 170 S.E.2d 450 (1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 66 (1970).

Psychiatric evaluation not required.

- Trial court was not compelled to direct a psychiatric examination when there was no showing that the defendant would not be able to intelligently participate at trial or that the defendant's sanity would be a significant issue at trial. Johnson v. State, 209 Ga. App. 514, 433 S.E.2d 717 (1993).

Escapee from state institution seeking habeas corpus.

- When a person charged with a criminal offense files a special plea of insanity under this section, and on such plea was found insane and committed to the Milledgeville State Hospital (now Department of Human Resources), and when after such commitment the person left the hospital without permission, and was later taken into custody by a sheriff for the purpose of being returned to such institution, the person cannot maintain a petition for the writ of habeas corpus on the ground that the person had regained sanity, without showing that the person pursued or attempted to pursue the statutory method of obtaining a release from the institution, or without alleging and proving some valid reason for the person's failure to invoke such remedy. Richardson v. Hall, 199 Ga. 602, 34 S.E.2d 888 (1945).

Evaluation by doctor not certified as psychiatrist.

- Requirement that the defendant be given a psychiatric evaluation may be satisfied by evaluation by a doctor qualified to give such opinion who may not be a board certified psychiatrist; thus, under these circumstances there is no violation of due process in the refusal of the trial judge to appoint a psychiatrist to make a pretrial examination or otherwise assist an indigent accused even when there has been a special plea of insanity. Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981).

Presumption of competency raised by release.

- Although prior adjudications by the probate court and the superior court raised a presumption of the defendant's mental incompetency, the defendant's administrative release by the Department of Human Resources under O.C.G.A. § 17-7-130 cancelled that presumption of incompetency and raised a presumption of competency. Newman v. State, 258 Ga. 428, 369 S.E.2d 902 (1988).

Verdict of guilty unauthorized if presumption overcome and no evidence of sanity introduced.

- If the defendant pleads insanity at the time of the crime and as a defense introduces evidence sufficient to overcome the presumption of sanity, and there is no evidence that the defendant was sane at the time of the commission of the offense, a verdict of guilty is unauthorized. Brooks v. State, 157 Ga. App. 650, 278 S.E.2d 463, aff'd, 247 Ga. 744, 279 S.E.2d 649 (1981).

Admissibility of testimony on sanity by agent of Georgia Bureau of Investigation.

- In special proceeding to determine sanity, it is not error for the trial court to allow an agent of the Georgia Bureau of Investigation to state underlying reasons for the agent's opinion that the criminal defendant is sane, when the evidence is not offered for the purpose of showing criminal misconduct or to prove the truth of the defendant's admissions but, instead, is offered to indicate the defendant's degree of understanding and mental condition. Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981).

Remedying error in determination that defendant competent to stand trial.

- When there was no meritorious claim of error in the trial itself, error in failure to provide a hearing on the issue of the defendant's competence to stand trial was not such an error as required a new trial on the question of guilt or innocence, but rather only required that the case be remanded for a determination of defendant's competence at the time of defendant's trial by holding a post-conviction hearing. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

Fact that the defendant gives way to emotional outbursts, is suicidal, or considers oneself insane is insufficient to demand reversal of the decision when the judgment against plea of insanity is being reviewed. Allanson v. State, 158 Ga. App. 77, 279 S.E.2d 316 (1981).

Finding of competence to stand trial affirmed.

- It was apparent that the testimony of the state's expert witness, finding the defendant competent to stand trial, supported the special jury's verdict of competency. Because there was some evidence in support of that verdict of competent to stand trial, the verdict had to be affirmed. Sims v. State, 267 Ga. App. 572, 600 S.E.2d 613 (2004).

Evidence was sufficient to support a special jury's finding that a defendant was competent to stand trial. Extensive testimony of doctors and hospital staff showed that the defendant was a longtime alcoholic, did not have a major mental illness, understood the legal proceedings, and could assist counsel at trial. Hester v. State, 283 Ga. 367, 659 S.E.2d 600 (2008).

Defendant did not file a special plea of incompetence to stand trial. As the defendant's colloquy with the trial judge indicated that the defendant understood the charges, the possible punishment, and the trial process, and that the defendant was helping counsel to prepare the defense; and as the psychologist who conducted the first competency evaluation opined that the defendant was probably exaggerating symptoms of incompetency, the defendant was properly found competent to stand trial and was not entitled to a second competency evaluation. Wadley v. State, 295 Ga. App. 556, 672 S.E.2d 504 (2009), cert. denied, No. S09C0811, 2009 Ga. LEXIS 255 (Ga. 2009).

Testimony from the state's forensic psychology expert that the defendant understood in detail the nature and object of the proceedings and the defendant's role in the proceedings and that the defendant was able, if not always inclined, to assist counsel supported a finding that the defendant was competent to stand trial. Slaughter v. State, 292 Ga. 573, 740 S.E.2d 119 (2013).

Defendant's competency no basis to conduct hearing or issue ruling on new trial motion.

- Trial court erred by refusing to conduct a hearing or to rule on the defendant's motion for a new trial based upon the court's finding that the defendant was, at that time, mentally incompetent and unable to assist counsel in challenging the conviction, as the defendant's current mental incompetence provided no logical basis to delay a post-conviction proceeding to address whether the defendant was incompetent at trial, whether the trial court should have been on notice of the incompetency and conducted a hearing during trial, or whether the trial counsel was ineffective for failing to timely raise the competency issue. Florescu v. State, 276 Ga. App. 264, 623 S.E.2d 147 (2005).

Relevance and proof of mental condition at time of offense.

- To show the insanity of the accused at the time of the commission of the offense it is relevant to introduce testimony showing the mental condition of the accused at the time of the offense, and the accused's mental condition before and after the offense may be proved as tending to show the accused's condition at the time of the offense. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).

Burden of proof generally.

- On the issue of insanity (now mental incompetency), the burden of proof rests upon the defendant who alleges the insanity. Carter v. State, 56 Ga. 463 (1876); Keener v. State, 97 Ga. 388, 24 S.E. 28 (1895).

Trial of a special plea of insanity is in the nature of a civil proceeding and the burden of producing evidence is on the defendant. Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980).

In every case there is a presumption that the accused is sane. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).

Presumption of sanity may be overcome by a preponderance of the evidence. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).

Failure to prove incompetency.

- Evidence was sufficient to conclude that the defendant failed to prove that the defendant was incompetent to stand trial because the state's expert witness found that, based on the defendant's exchanges during a police interview, the felony murder concept was explained to the defendant numerous times and the defendant's responses indicated that the defendant understood; the fact that the defendant did not think that the defendant should be held responsible for the victim's death did not mean that the defendant should not be held responsible or that it rendered the defendant incapable of understanding the situation; and that there was no medical support for the conclusion that the defendant was not competent to stand trial in 2008. Tye v. State, 298 Ga. 474, 782 S.E.2d 10 (2016).

Counsel not ineffective for not raising issue.

- Defendant failed to show that the defendant's counsel was ineffective in violation of U.S. Const., amend. 6 for failing to pursue a request for a psychological examination, an insanity defense under O.C.G.A. § 16-3-2, and asserting that the defendant was not competent to stand trial under O.C.G.A. § 17-7-130 in a criminal trial arising from multiple offenses, including murder, as there was nothing in the defendant's psychological history or in counsels' interactions with the defendant which suggested that there was a problem with the defendant's sanity or competency. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485 (2005).

Counsel's failure to raise issue deficient but not prejudicial.

- Defendant's trial counsel performed deficiently in not seeking expert assistance in evaluating the defendant's mental condition at the time of the shooting and at the time of trial because the defendant was hospitalized in 1996 after stabbing the same man that the defendant murdered; and, in 1996, the defendant reported hearing a voice telling the defendant to kill for which the defendant received antipsychotic medication; however, counsel's deficient performance was not prejudicial as the defendant did not show that the jury would have returned a verdict of not guilty by reason of insanity because the defendant did not receive any diagnosis of or treatment for mental illness for more than a decade before the current crimes. Scott v. State, 301 Ga. 573, 802 S.E.2d 211 (2017).

If insanity of the defendant is known to defendant's counsel, then counsel has a professional, moral, and legal duty to file a plea of insanity as provided by law. If unknown, then it can be raised by a ground of a motion for a new trial by a proper showing. Huguley v. State, 120 Ga. App. 332, 170 S.E.2d 450 (1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 66 (1970).

Counsel may not be called to testify as to client's competency.

- It is not legally permissible for the state to call the defendant's counsel as a witness for the purpose of extracting facts and counsel's opinion as to the client's competency which is gained from the counsel's participation in the attorney-client relationship with the defendant. Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482 (1986).

Question of insanity is in province of jury.

- Insanity is a question of fact, and not of law, and it is the exclusive province of the jury to determine all questions of fact. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).

Jurors are not bound by opinions of either lay witnesses or expert witnesses as to question of sanity and jurors may rely on the basic presumption existing under Georgia law. Brooks v. State, 157 Ga. App. 650, 278 S.E.2d 463, aff'd, 247 Ga. 744, 279 S.E.2d 649 (1981).

There was insufficient reason for jury to disregard the unanimous opinions of psychiatric experts that the defendant, who suffered from schizophrenia, was incompetent to stand trial. Defendant was therefore denied due process of law when the defendant was tried. Wallace v. Kemp, 757 F.2d 1102 (11th Cir. 1985).

If no question of competency to stand trial is ever raised, the failure to charge the jury on O.C.G.A. § 17-7-130 is not error. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133, 311 S.E.2d 821 (1984).

No error in declining to charge jury on insanity.

- Because the defendant failed to present any evidence from which a jury could conclude that the defendant did not know right from wrong when the defendant committed the criminal acts, the trial court did not err in declining to charge the jury pursuant to O.C.G.A. § 17-7-131(b)(1)(C) that the defendant could be found not guilty by reason of insanity under O.C.G.A. § 16-3-2; the defendant introduced no evidence of insanity, only lay witness testimony about generalized problems. McBride v. State, 314 Ga. App. 725, 725 S.E.2d 844 (2012).

Appeal from judgment.

- Plea of insanity at the time of trial is an interlocutory judgment and not subject to direct appeal without a timely certificate from the trial court. Spell v. State, 120 Ga. App. 398, 170 S.E.2d 701 (1969).

When a plea of insanity was granted and the defendant was transferred to the Department of Human Resources (DHR), the DHR could appeal directly without following the interlocutory appeal procedure. Georgia Dep't of Human Resources v. Drust, 264 Ga. 514, 448 S.E.2d 364 (1994).

Review of finding against special plea.

- Indicted party has no right to direct review from a finding against the party's special plea of insanity without a certificate of the trial judge. Watson v. State, 229 Ga. 787, 194 S.E.2d 407 (1972).

When denial of plea set aside on appeal.

- Court of Appeals will not set aside a verdict finding against such a plea unless the evidence demands a finding in its favor. Polk v. State, 19 Ga. App. 332, 91 S.E. 439 (1917).

Upon remand in a criminal case, on the issue of the defendant's competency, the burden first fell upon the state to show there was sufficient evidence to make a meaningful determination of competency at the time of trial, and if the court ruled that a determination of the defendant's competency at the time of trial was not presently possible, then a new trial had to be granted, but if the court decided such a determination was possible, the issue of competency to stand trial had to be tried and the defendant had the burden to show incompetency by a preponderance of the evidence; the sole issue to be presented to the fact-finder was that of mental competency; evidence as to guilt was irrelevant, and if the fact-finder found that the defendant was not mentally competent at the time of trial, the verdict in the main case had to be set aside, but if the defendant failed by a preponderance of the evidence to prove incompetence at the time of trial, the verdict of guilty would stand. Traylor v. State, 280 Ga. 400, 627 S.E.2d 594 (2006).

Standard for review of a finding of competency to stand trial.

- "Any evidence" standard of appellate review employed by the court of appeals was improper. The appropriate standard of appellate review is whether after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that the defendant was incompetent to stand trial, overruling Stowe v. State, 272 Ga. 866, 536 S.E.2d 506 (2000), Pope v. State, 185 Ga. App. 547, 362 S.E.2d 123 (1987), and any other cases in conflict; therefore, the defendant's conviction was reversed. Sims v. State, 279 Ga. 389, 614 S.E.2d 73 (2005).

Instructions to physician regarding insanity of one convicted of a capital felony.

- In view of the fact that the inquiry under former Code 1933, § 27-2602 (see O.C.G.A. § 17-10-61) was directed to the alleged insanity occurring subsequent to the conviction, the definitions of insanity in former Code 1933, §§ 79A-9917 and 79A-9918 (see O.C.G.A. §§ 16-3-2 and16-3-3) were inapplicable and should not be given in written instructions to physicians appointed pursuant to former Code 1933, § 27-2602. Those instructions should inform the physicians that the issue was the present sanity of the individual and should be determined on the basis of whether the individual is capable of presently understanding the nature and object of the proceedings going on against the individual and rightly comprehends the individual's own condition in reference to such proceedings, and was capable of rendering the individual's attorneys such assistance as a proper defense to the proceedings preferred against the individual demands. Since the basic issue is the individual's sanity at a time subsequent to conviction, or, in effect, the individual's present sanity, the appropriate test should be that as employed upon a special plea of insanity under former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130). 1976 Op. Att'y Gen. No. 76-123.

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 55 et seq.

Defendant's Competency to Stand Trial, 40 POF2d 171.

Adequacy of Quasi-Miranda Warning Prior to Involuntary Civil Commitment, 40 POF2d 733.

Wrongful Confinement to a Mental Health or Developmental Disabilities Facility, 44 POF3d 217.

C.J.S.

- 22 C.J.S., Criminal Law, § 501.

ALR.

- Constitutionality of statutes relating to determination of plea of insanity in criminal case, 67 A.L.R. 1451.

Judicial declaration of sanity, made after alleged offense but before acquittal on ground of insanity at time of offense, as affecting duty of court to commit defendant to asylum for insane, 88 A.L.R. 1084.

Admissibility of evidence of reputation on issue of mental condition, or testamentary or contractual incapacity or capacity, 105 A.L.R. 1443.

Investigation of present sanity to determine whether accused should be put, or continue, on trial, 142 A.L.R. 961.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

Counsel's right, in consulting with accused as client, to be accompanied by psychiatrist, psychologist, hypnotist, or similar practitioner, 72 A.L.R.2d 1120.

Release of one committed to institution as consequence of acquittal of crime on ground of insanity, 95 A.L.R.2d 54.

Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency, 16 A.L.R.3d 714.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.

Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884.

Modern status of test of criminal responsibility - state cases, 9 A.L.R.4th 526.

Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial, 15 A.L.R.4th 1043.

Power of court, in absence of statute, to order psychiatric examination of accused for purpose of determining mental condition at time of alleged offense, 17 A.L.R.4th 1274.

Competency to stand trial of criminal defendant diagnosed as "mentally retarded" - modern cases, 23 A.L.R.4th 493.

Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding, 26 A.L.R.4th 995.

Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern state cases, 33 A.L.R.4th 1062.

Pyromania and the criminal law, 51 A.L.R.4th 1243.

Probation revocation: insanity as defense, 56 A.L.R.4th 1178.

"Guilty but mentally ill" statutes: validity and construction, 71 A.L.R.4th 702.

Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.