Restoration hearing - burdens of proof - determination

(1) (a) The court may, upon a motion of a party and upon a showing of good cause, set a restoration hearing within the time frame set forth in section 16-8.5-108 (1)(d). For the purposes of this subsection (1)(a), good cause includes if a defendant is approaching the maximum time permitted to restore the defendant pursuant to section 16-8.5-116. A restoration hearing may be combined with a restorability hearing, if appropriate. (b) The court shall set a restoration hearing within the time frame set forth in section 16-8.5-108 (1)(d) upon motion of a party if: (I) The court has ordered CDHS to provide an incompetent defendant restoration services pursuant to section 16-8.5-110 and the defendant is receiving restoration services; (II) The court receives a competency evaluator's opinion that the defendant is competent to proceed; and (III) A restoration hearing has not been held or one hundred eighty-two days have passed after a finding at a restoration hearing that the defendant remains incompetent to proceed and the defendant has continued to receive restoration services. (2) Either party may request a restoration hearing or a second evaluation pursuant to section 16-8.5-111. (3) If neither party requests a restoration hearing within the time frame set forth in section 16-8.5-108 (1)(a), the court shall enter a final determination, based on the information then available to the court, whether the defendant is competent or incompetent to proceed. (4) At the restoration hearing, the party asserting that the defendant is competent has the burden of proof by a preponderance of the evidence and the burden of submitting evidence. At the restoration hearing, the court shall determine whether the defendant is restored to competency. (5) When CDHS submits a report to the court that CDHS's position is that the defendant is restored to competency, the defendant may be returned to the custody of the county jail. The sheriff shall return the defendant to the custody of the county jail within seventy-two hours after receipt of CDHS's report.