Defense attorneys for the mentally incompetent man charged with kidnapping Elizabeth Smart have asked the court to dismiss his case, contending he is suffering unnecessary anxiety over a criminal trial that is unlikely to be held.

The papers, filed Thursday in 3rd District Court, claim that continuing to hold criminal charges against Brian David Mitchell creates "unnecessary and harsh" conditions of confinement that violate Utah's constitution.

"Mr. Mitchell is incompetent to stand trial and will remain so. Permitting his criminal charges to remain, despite the reality that no trial will ever be held, is unjustified and unnecessary," attorneys Heidi Buchi and Michael Sikora wrote. "It accomplishes nothing more than to cause Mr. Mitchell anxiety and concern."

Mitchell suffers from a rare delusional disorder and has twice been found incompetent to stand trial. The state's case stalled in October after the state judge said she would not order forced medications for Mitchell.

Buchi and Sikora contend in the absence of a trial and conviction, the state could seek to have Mitchell civilly committed. That would prevent him from being a threat to the community without causing him the "anxiety and concern" inherent in criminal charges.

Salt Lake County Deputy Prosecutor Alicia Cook said she would oppose the request.

"We don't think that it's necessary to dismiss the charges at this point," Cook said Friday. "We do not think that the case is dead. We think that there are many concerns and that it's valid to continue to put energy and interest into this case. If there's any possibility of moving forward on it, we want to preserve it."

Cook said the law did not require the charges to be dismissed when the state had been unsuccessful at restoring a defendant's competency.

Atherton scheduled a Feb. 26 hearing to decide the issue.

Mitchell has been held since his arrest in 2003, when he was charged with multiple felony kidnapping and sexual assault charges in the abduction of Smart. A federal grand jury also indicted Mitchell on charges of kidnapping and unlawful transportation of a minor in March.

Smart was 14 when she was taken from her Salt Lake City home in June 2002. She was found nine months later.

Mitchell recently was transferred to the U.S. Medical Center for Federal Prisoners in Springfield, Miss., where he was undergoing a mental evaluation ordered by a federal judge. It was unclear how long that process would take.