Sec. 5. (a) Except as provided by subsection (e),
whenever a defendant is found guilty but mentally ill at the time of the
crime or enters a plea to that effect that is accepted by the court, the
court shall sentence the defendant in the same manner as a defendant
found guilty of the offense.
(b) Before sentencing the defendant under subsection (a), the court
shall require the defendant to be evaluated by a physician licensed
under IC 25-22.5 who practices psychiatric medicine, a licensed
psychologist, or a community mental health center (as defined in IC 12-7-2-38). However, the court may waive this requirement if the
defendant was evaluated by a physician licensed under IC 25-22.5 who
practices psychiatric medicine, a licensed psychologist, or a community
mental health center and the evaluation is contained in the record of the
defendant's trial or plea agreement hearing.
(c) If a defendant who is found guilty but mentally ill at the time of
the crime is committed to the department of correction, the defendant
shall be further evaluated and then treated in such a manner as is
psychiatrically indicated for the defendant's mental illness. Treatment
may be provided by:
(1) the department of correction; or
(2) the division of mental health and addiction after transfer under
IC 11-10-4.
(d) If a defendant who is found guilty but mentally ill at the time of
the crime is placed on probation, the court may, in accordance with IC 35-38-2-2.3, require that the defendant undergo treatment.
(e) As used in this subsection, "individual with an intellectual
disability" means an individual who, before becoming twenty-two (22)
years of age, manifests:
(1) significantly subaverage intellectual functioning; and
(2) substantial impairment of adaptive behavior;
that is documented in a court ordered evaluative report. If a court
determines under IC 35-36-9 that a defendant who is charged with a
murder for which the state seeks a death sentence is an individual with
an intellectual disability, the court shall sentence the defendant under
IC 35-50-2-3(a).
(f) If a defendant is found guilty but mentally ill, the court shall
transmit any information required by the office of judicial
administration to the office of judicial administration for transmission
to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with IC 33-24-6-3.
As added by Acts 1981, P.L.298, SEC.5. Amended by
P.L.320-1983, SEC.21; P.L.1-1991, SEC.191; P.L.2-1992, SEC.870;
P.L.1-1993, SEC.239; P.L.158-1994, SEC.2; P.L.121-1996, SEC.3;
P.L.215-2001, SEC.108; P.L.99-2007, SEC.200; P.L.110-2009,
SEC.14; P.L.114-2012, SEC.75; P.L.117-2015, SEC.47; P.L.161-2018,
SEC.119.
IC 35-36-3Chapter 3. Comprehension to Stand Trial
35-36-3-1Hearing; psychiatric examination; delay or
continuance of trial; confinement in psychiatric
institution; competency restoration services;
transmittal of information to NICS 35-36-3-2Attainment of ability to stand trial; certification;
return to court; order; trial 35-36-3-3Substantial probability of attainment of
comprehension to stand trial; certification;
motion to dismiss; commitment proceedings;
duration of retention 35-36-3-4Inability to attain comprehension to stand trial;
commitment proceedings
Notes of Decisions
Cited in
47
cases (
2 in the last 5 years), 1985–2025 · leading case:
Pruitt v. State, 903 N.E.2d 899 (Ind. 2009).
Pruitt v. State, 903 N.E.2d 899 (Ind. 2009).
· cites it 8× “1998) ( quoting I.C. § 35-36-2-5(a) (Supp.1994)). [33] "Nonetheless, in sentencing a GBMI defendant `in the same manner' as any other guilty defendant, trial courts should at a minimum carefully consider on the record what mitigating weight, if any, to accord to any evidence of…”
Overstreet v. State, 877 N.E.2d 144 (Ind. 2007).
· cites it 12× “[2] Ind Code § 35-36-2-5 (last amended in 2007), and Ind.”
Galloway v. State, 938 N.E.2d 699 (Ind. 2010).
· cites it 7× “See I.C. § 35-36-2-5(a). The trial court sentences a GBMI defendant "in the same manner as a defendant found guilty of the offense," id.”
Baer v. State, 942 N.E.2d 80 (Ind. 2011).
· cites it 8× “Ind. Code § 35-36-2-5 (c). This treatment may be done by the Department of Correction or the Division of Mental Health and Addiction, either during imprisonment or during defendant’s probation.”
Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001).
· cites it 4× “§ 17-7-131; Ind.Code Ann. §§ 35-36-2-5 & 35-36-9-2, et seq.”
Harris v. State, 499 N.E.2d 723 (Ind. 1986).
· cites it 12× “The defendant further acknowledges that if this plea of guilty but mentally ill is accepted by the Court `the Court shall sentence him in the same manner as a defendant found guilty of the offense' [ Ind. Code § 35-36-2-5 (a)] and the Court could decide to impose the death…”
Baer v. State, 866 N.E.2d 752 (Ind. 2007).
· cites it 6× “" Ind.Code § 35-36-2-5(a). Such a defendant shall, however, be further evaluated at the Department of Correction and treated as is psychiatrically indicated for the illness.”
Gambill v. State, 675 N.E.2d 668 (Ind. 1996).
· cites it 6× “Another provision of the Indiana Code, Section 35-36-2-5 provides that, where a defendant is found Guilty but Mentally Ill, the sentencing court shall sentence that individual in the same manner as a defendant found Guilty of the offense.”
Brad W. Passwater v. State of Indiana, 989 N.E.2d 766 (Ind. 2013).
· cites it 4× “(citing I.C. § 35-36-2-5). Whenever a defendant is found not responsible by reason of insanity at the time of the crime, the prosecuting attorney shall file a written petition for mental health commitment with the court.”
Georgopolus v. State, 735 N.E.2d 1138 (Ind. 2000).
· cites it 6× “See Ind. Code § 35-36-2-5 (c). Neither of these additional procedures is available to a defendant who is found simply guilty of an offense.”
Schumann v. State, 900 N.E.2d 495 (Ind. Ct. App. 2009).
· cites it 4× “We also note that even though the trial court did not have the authority to ensure a particular method of mental health treatment that Schumann should be afforded, the DOC has both the duty and the facilities to care for mentally ill offenders.”
Powell v. State, 751 N.E.2d 311 (Ind. Ct. App. 2001).
· cites it 2× “" Ind. Code § 35-36-2-5 (a). Nonetheless, trial courts should, at a minimum, carefully consider on the record what mitigating weight, if any, to accord to evidence of mental illness, even though there is no obligation to give the evidence the same weight the defendant does.”
Ind. Code § 35-36-2-5(a): 14 cases
Pruitt v. State, 903 N.E.2d 899 (Ind. 2009).
“1998) ( quoting I.C. § 35-36-2-5(a) (Supp.1994)). [33] "Nonetheless, in sentencing a GBMI defendant `in the same manner' as any other guilty defendant, trial courts should at a minimum carefully consider on the record what mitigating weight, if any, to accord to any evidence of…”
Galloway v. State, 938 N.E.2d 699 (Ind. 2010).
“See I.C. § 35-36-2-5(a). The trial court sentences a GBMI defendant "in the same manner as a defendant found guilty of the offense," id.”
Baer v. State, 866 N.E.2d 752 (Ind. 2007).
“" Ind.Code § 35-36-2-5(a). Such a defendant shall, however, be further evaluated at the Department of Correction and treated as is psychiatrically indicated for the illness.”
Brad W. Passwater v. State of Indiana, 989 N.E.2d 766 (Ind. 2013).
“(citing I.C. § 35-36-2-5). Whenever a defendant is found not responsible by reason of insanity at the time of the crime, the prosecuting attorney shall file a written petition for mental health commitment with the court.”
Ind. Code § 35-36-2-5(b): 5 cases
Galloway v. State, 938 N.E.2d 699 (Ind. 2010).
“See I.C. § 35-36-2-5(a). The trial court sentences a GBMI defendant "in the same manner as a defendant found guilty of the offense," id.”
Baer v. State, 942 N.E.2d 80 (Ind. 2011).
“Ind. Code § 35-36-2-5 (c). This treatment may be done by the Department of Correction or the Division of Mental Health and Addiction, either during imprisonment or during defendant’s probation.”
Gambill v. State, 675 N.E.2d 668 (Ind. 1996).
“Another provision of the Indiana Code, Section 35-36-2-5 provides that, where a defendant is found Guilty but Mentally Ill, the sentencing court shall sentence that individual in the same manner as a defendant found Guilty of the offense.”
Ind. Code § 35-36-2-5(c): 6 cases
Baer v. State, 942 N.E.2d 80 (Ind. 2011).
“Ind. Code § 35-36-2-5 (c). This treatment may be done by the Department of Correction or the Division of Mental Health and Addiction, either during imprisonment or during defendant’s probation.”
Baer v. State, 866 N.E.2d 752 (Ind. 2007).
“" Ind.Code § 35-36-2-5(a). Such a defendant shall, however, be further evaluated at the Department of Correction and treated as is psychiatrically indicated for the illness.”
Ind. Code § 35-36-2-5(e): 1 case
Overstreet v. State, 877 N.E.2d 144 (Ind. 2007).
“[2] Ind Code § 35-36-2-5 (last amended in 2007), and Ind.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.