Under our Constitution, "a person who lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing a defense may not be subjected to a trial."
A judge may determine that they believe an individual is not competent to stand trial. After a trial judge makes that determination, then the person must be evaluated either by the Department of Mental Health (DMH) or the Department of Disabilities and Special Needs (DDSN) or both. After the individual is evaluated, the judge will review the evaluation to determine if the individual is competent (legal standard) to proceed with trial. (If they are not found to be competent, then there is an entire other process to be followed).
Under S.C. law, a Circuit Court judge or a Family Court judge may order the evaluation of the individual by DMH or DDSN:
The issue that repeatedly arose in Summary Courts was that 44-23-410 only specifically referred to Circuit Court or Family Court. So even if a Summary Court judge believed the individual to be incompetent, they did not have the statutory authority to order an evaluation. Thus, leaving their case delayed and in limbo.
However, the S.C. Supreme Court addressed this issue this week (State v. Bellardino, a substitution opinion from October). The Court held that even though 44-23-410 did not specifically include Summary Courts, it also did not exclude them. And because it would be a due process violation not to have individuals evaluated, then the Summary Court is well within its rights to order evaluations by either DMH or DDSN.
The second issue that arises with the evaluations by Summary Courts, is who is going to pay for them. The Court held that the Summary Court can order the prosecuting party to pay: