In re DC

 NOTICE:   This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
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                                 No. 91-564

 In re D.C.                                   Supreme Court

                                              On Appeal from
                                              Lamoille Family Court

                                              September Term, 1992

 John P. Meaker, J.

 Valerie White and Ruth Oberg, Law Clerk (On the Brief), Hyde Park, for
    petitioner-appellant

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Janet Bull, Assistant
    Attorney General, Waterbury, for respondent-appellee

 Dixie Henry, Vermont Development Disabilities Law Project, Burlington, for
    amicus curiae Vermont Protection and Advocacy, Inc.

 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      MORSE, J.    D.C., a 27-year-old mentally retarded man sentenced for
 attempted sexual assault, appeals from the dismissal of a petition to place
 him in the custody of the commissioner of Mental Health and Mental
 Retardation.  The family court dismissed the petition because the commis-
 sioner could not reasonably afford to treat D.C. at the relatively high
 predicted cost.  In defending the dismissal, the commissioner claims that
 the court should have dismissed the petition on other grounds as well.  In
 his cross-appeal, the commissioner argues that the court lacked subject
 matter jurisdiction over the proceeding because civil commitment was not
 available for someone, like D.C., who had been found competent to stand
 trial on criminal charges.  Further, he asserts that the court erred by not
 approving the state's attorney's request to dismiss under the authority of
 18 V.S.A. { 8823(a).  We affirm.
       In October 1990, D.C. was charged in district court with several
 crimes, including attempted sexual assault.  He was found competent to stand
 trial for the offenses and subsequently negotiated a conditional plea
 agreement with the State under which he was to be incarcerated for one year.
 The incarceration was to be followed by a period of probation which included
 residential placement, twenty-four-hour supervision, and intensive sex
 offender therapy.
      At the time of the plea negotiations, a presentence investigation was
 performed by a probation officer, who recommended a longer period of incar-
 ceration because the level of probationary supervision and programming nec-
 essary for D.C. was unavailable in the Department of Corrections.  Accord-
 ingly, defense counsel filed a petition as an "interested party" under 18
 V.S.A. {{ 8821(3) and 8822(b), seeking the commitment of D.C. to the custody
 of the commissioner of Mental Health and Mental Retardation under Act 248,
 18 V.S.A. {{ 8839-8846.  Act 248 embodies a civil means of committing
 mentally retarded individuals who are at risk.  Treatment is provided in
 community-based programs.
      Because no such program had been secured for D.C. prior to the
 sentencing hearing, the district court rejected the plea agreement.  Con-
 sequently, following an adjudication of guilt the district court sentenced
 D.C. to serve 4-10 years.  Nonetheless, pursuant to Act 248, defense counsel
 continued to pursue the civil commitment of D.C. to the commissioner of
 Mental Health and Mental Retardation.
      The commissioner and the state's attorney, who is responsible under 13
 V.S.A. { 8823(a) to prosecute the action under Act 248, moved to dismiss the
 petition.  The court denied the motions.  At the merits hearing, the parties
 stipulated that D.C. was mentally retarded and presented a danger of harm to
 others, thereby satisfying two of the three criteria for commitment under {
 8843(c). (FN1) As to the third element, however, the court concluded that the
 Department of Mental Health and Mental Retardation lacked the funds neces-
 sary, estimated at $100,000 a year, to implement the program recommended by
 the experts who had evaluated D.C.  Notably, the court found that funding of
 a program for D.C.'s community placement would require reallocation of
 funds already assigned to an estimated 1554 disabled individuals currently
 served by the commissioner.  Accordingly, the court dismissed the petition.

                                     I.

      The family court did not err when it denied the state's attorney's
 request to dismiss the petition under the authority of 18 V.S.A. { 8823(c),
 which states that "[t]he attorney for the state may, with the approval of
 the court, dismiss the petition at any state of the proceedings."  (emphasis
 added.)  Despite the legislature's directive that any dismissal be approved
 by the court before it can take effect, the State, relying on the
 "considerable discretion" afforded state's attorneys in their prosecutorial
 role, State v. Reed, 127 Vt. 532, 539, 253 A.2d 227, 232 (1969), insists the
 court erred in not approving the State's request.  The State contends that,
 in effect, the court forced the state's attorney to undermine his objectives
 in the criminal case against D.C. by requiring him to pursue the civil com-
 mitment.
      We reject this argument for the simple reason that the state's
 attorney's objectives must comport with the directives of the legislature.
 The legislature placed the final authority for dismissal with the court, and
 unless it amends { 8823(c) to remove that authority, the state's attorney
 cannot complain that he has been deprived of vested discretionary authority.
 Alternatively, if the basis of the State's argument is that the court abused
 its discretion because the claim was meritless, that lack of merit did not
 become apparent until the hearing on the merits.  In the end, the State
 achieved a dismissal on the merits.  Unless we turn the concept of due
 process around and have the decision precede the hearing, the State was not
 entitled to more.
                                     II.
      The trial court had subject matter jurisdiction to hear and rule on the
 commitment proceedings.  The commissioner argues that because D.C. had
 already been found competent to face the criminal charges, the court lacked
 authority under Act 248 to grant the requested relief.
      A person may be committed to the commissioner's custody if in need of
 "custody, care and habilitation."  18 V.S.A. { 8843(c).  Such a person is
 defined as "a mentally retarded person," "who presents a danger of harm to
 others," "for whom appropriate custody, care and habilitation can be pro-
 vided by the commissioner in a designated program."  18 V.S.A. { 8839(3).
 Admittedly, one who "presents a danger of harm to others" may be particu-
 larly prone to commit a crime of violence and be prosecuted for it.  Yet,
 Act 248 does not in any manner base its criteria for civil commitment upon
 the person's involvement in criminal proceedings.  The only qualification is
 found in 18 V.S.A. { 8844, which states that "[n]o determination that a
 person is in need of custody, care and habilitation and no order authorizing
 commitment shall lead to a presumption of legal incompetence."  Section
 8844, however, only restricts the evidentiary use of a civil commitment in
 other civil proceedings and criminal matters involving that person.
      A person who is committed to the supervision of the commissioner of
 corrections may be transferred to the Department of Mental Health and Mental
 Retardation so long as the civil commitment process under Title 18 is
 followed.  28 V.S.A. { 703(a).  If that is so, we fail to see why the civil
 commitment process may not be pursued during the criminal process.  Sub-
 stantively, the test for competency to stand trial in a criminal case is
 different from the test for civil commitment.  A person who is capable of
 understanding the nature of the charges and participating in the defense,
 State v. Williams, 154 Vt. 76, 79, 574 A.2d 1264, 1265 (1990), may or may
 not be mentally retarded and a danger to others, and vice versa.
      Nothing in the language of the applicable legislation indicates that
 criminal charges and civil commitment are mutually exclusive.  Further,
 commitment proceedings are mandated in two circumstances relevant to this
 case.  A defendant either found incompetent to stand trial or acquitted of
 criminal charges by reason of insanity must undergo a commitment proceeding.
 13 V.S.A. { 4820.  No legislative intent can be found that persons ruled
 competent to stand trial in a criminal case are disqualified per se from
 commitment under Act 248.
                                    III.
      The family court, however, did not err when it dismissed the petition
 based on the commissioner's shortage of funding.  At issue in this case is
 the interpretation of the third prong of { 8839, defining a "person in need
 of custody, care and habilitation," which states, "for whom appropriate
 custody, care and habilitation can be provided by the commissioner in a
 designated program." 18 V.S.A. { 8839(3)(C) (emphasis added).  Specifically,
 we must decide whether the words "can be provided" in { 8839(3)(C) encompass
 fiscal considerations.
      D.C. maintains that { 8839(3)(C) mandates commitment to the
 commissioner if treatment is theoretically possible, even when practically
 impossible or, at best, wholly unreasonable.  D.C. does not challenge the
 family court's agreement with the commissioner's assessment that spending
 $100,000 a year on D.C. was an unreasonable allocation of resources, and we
 reject an "anything is possible" interpretation of the "can be provided"
 criterion.
      Among the powers, duties, and functions conferred by statute, the
 commissioner may "coordinate services as to most efficiently carry out the
 purposes of" mental health legislation and "plan and coordinate the
 development of community services" for mentally retarded individuals in the
 state.  18 V.S.A. { 7401(1), (14).  Given the broad discretion afforded the
 commissioner in delivering services, this Court has already determined that
 fiscal considerations are germane to the commissioner's obligations under
 similar circumstances.  In In re C.B., we held that placement of mentally
 retarded individuals in the least restrictive environment consistent with
 adequate treatment does not mandate placement if funds are unavailable.  147
 Vt. 378, 383, 518 A.2d 366, 370 (1986).  There we noted:
             While it is undoubtedly true that every budgetary
           concern could be reduced to a question of allocation, we
           do not believe that the Legislature intended the courts
           to be overseeing how the Department of Mental Health
           prioritizes needs, and allocates monies appropriated for
           the care of the mentally retarded.

 Id.
      D.C. contends, however, that had the legislature wanted to condition
 commitment under { 8843 on availability of funding, it would have provided
 specific language to that effect in the statute, as it did in the Community
 Mental Health Services statute, 18 V.S.A. { 8907.  Section 8907(a) restricts
 services "within the limits of funds designated by the legislature for this
 purpose," and { 8907(b) restricts services "[w]ithin the limits of available
 resources."  Because { 8839(3)(C) lacks this limiting language, D.C. argues
 that fiscal considerations are not a relevant criterion.
      Section 8907 is a legislative directive to the commissioner to consider
 the department's budget when spending money on community mental health
 programs.  The commissioner implements these community mental health
 programs, within appropriate budgetary restraints, and there is no court
 involvement.  In contrast, the court decides in a civil commitment
 proceeding who is eligible for the appropriate programs.  The legislature's
 directive to the court, when it decides whether to commit someone, is
 similar to the commissioner's responsibility in administering community
 health programs, albeit in different words.  Under { 8839, the court must
 assess whether the commissioner can reasonably meet the needs of the
 petitioner.  Meeting needs ordinarily involves spending money.
      18 V.S.A. { 8835 is more to the point.  It directs the commissioner to
          ensure that, within the limits of funds made available
         for care for mentally retarded persons, the following
         are maintained for each mentally retarded person placed
         in his custody pursuant to this chapter . . . and for
         each mentally retarded person placed in a residential
         facility established by the commissioner:

           (1) a current individual program plan; and
           (2) appropriate and specific support personnel and
         services, all or most of which are reasonably available,
         to implement such plan . . . .

 Read in conjunction with { 8835, { 8839(3)(c) reasonably leads to the con-
 clusion that the standard, "appropriate custody, care and habilitation can
 be provided," includes services that are affordable.
      The responsibility for fiscal management is where it should be.  The
 commissioner, subject to court supervision, is in a better position to
 assess the hard choices that arise when a limited amount of funds must serve
 hundreds of persons in need of programs.
      Affirmed.





                                    FOR THE COURT:



                                    ______________________________
                                    Associate Justice





FN1.    18 V.S.A. { 8843(c) states:
  If the court finds that the respondent is a person in
 need of custody, care and habilitation, it shall order
 the respondent committed to the custody of the commis-
 sioner for placement in a designated program in the
 least restrictive environment consistent with the
 respondent's need for custody, care and habilitation for
 an indefinite or a limited period.
        Section 8839(3) defines "person in need of custody, care and
 habilitation" as follows:
  (A) a mentally retarded person;
  (B) who presents a danger of harm to others; and
  (C) for whom appropriate custody, care and habilita-
 tion can be provided by the commissioner in a designated
 program.