Key Information

Relevant Statutes and Rules

Fla. Stat. Ann. §§ 916.10- 916.304

Fla. R. Crim. Pro. 3.210 - 3.215 

[Note: Florida has separate tracks for D's if they are mentally ill vs. intellectually disabled or autistic.
Florida Stat., Title XLVII, Chapter 916 has the competency statutes. Part I has general provisions. Part II covers mentally ill D's. Part III covers intellectually disabled / autistic D's.]

What proceedings can occur while the defendant is incompetent

Anything outside of the "material stage of the criminal proceeding." Proceedings allowed include judicial action, hearings on motions of the parties, discovery proceedings, or other procedures that do not require the personal participation of the defendant.

Fla. R. Crim. Pro. § 3.210

A "material stage of a criminal proceeding [ ] includes the trial of the case, pretrial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, proceedings for violation of probation or community control, sentencing, and hearings on issues regarding a defendant's failure to comply with court orders or conditions or other matters in which the mental competence of the defendant is necessary for a just resolution of the issues being considered." Fla. Stat. § 916.106(11); Fla. R. Crim. Pro. 3.210(a)(1)

Number of examiners required

For Mentally Ill

2 minimum, 3 maximum; but if 1 evaluator finds D incompetent, parties can stipulate to incompetence finding.  Fla. Stat.§§ 916.115(1), 916.12(2)

For Intellectually Disabled or Austistic

1 or 2 experts to decide whether D meets definition of I.D. or autism and, if so, whether D is competent to proceed; AND
1 licensed psychologist selected by the agency  to evaluate whether D meets the defintition of I.D. or autism and, if so, whether he is incompetent to proceed because of I.D. or autism;  AND
1 social service professional  with experience working with I.D. or autistic people to provide a social and developmental history of D.

Fla. Stat. §  916.301(3)

Qualifications of examiners

For Mentally ill

"To the extent possible"

(1) Psychiatrist, licensed psychologist, or physician.

(2) Completed approved forensic evaluator training.

Fla. Stat. § 916.115(1)

For Intellectually Disabled / Autistic

All evaluators must "have expertise in evaluating persons who have an intellectual disability or autism." Fla. Stat. §  916.301(1)

One expert must be a licensed psychologist selected by the Agency for Persons with Disabilities.  And one expert must be a social service professional, with experience in working with I.D. or autistic people. Fla. Stat. § 916.301(2)

What must the evaluation report contain

Whether D has a mental illness and/or an I.D./Autism.  If yes, then whether D meets the criteria for competence to proceed.  Fla. Stat. §§ 916.12(2), 916.3012(2). 

The report must address each factor listed in Fla. Stat. § 916.12(3) (Mentally-Ill) or § 916.3012(3) (I.D./Autism). (See Language of Standard cell)

If D is incompetent, report must also address treatment or training recommendations that could restore D to competence, what the specific diagnosis is, whether treatment/training options are available (in general and/or in the community), an estimate of how long training or treatment should take, and the probablity that the D will be competent to proceed in the foreseeable future.  Fla. Stat. § 916.12(4), 916.3012(4);  Fla. R. Crim. P. 3.2111(b)

Written reports must also: (1) identify specific matters referred for evaluation; (2) describe the evaluative procedures, tests, and techniques and the reasons for using them; (3) state the evaluator's observations, findings, and opinions on each issue referred for evaluation and identify matters where the evaluator could not give an opinion; (4) identify the expert's sources of information and present the factual basis for the experts findings and opinions; and (5) explain why alternative treatment recommendations  are insufficient to meet D's needs.  Fla. R. Crim. P. 3.211(c).

Are low-level offenses excluded from restoration

No provision for inpatient restoration for misdemeanors. See  Fla. Stat. § 916.105(1); § 916.106(6).

Fla. has established a grant program for communities wishing to stand up a mental health diversion program for individuals accused of misdemeanors and ordinance violations. Fla. Stat. § 916.135. Statute sets up a model for communities to follow which includes early screening of individuals booked into the jail for mental illness, followed by evaluation by mental health professional for involuntary examination or outpatient services. Upon completion of inpatient services or upon creation of outpatient treatment plan, court may consider releasing the defendant on his or her own recognizance on the condition that he or she comply fully with the discharge plan or outpatient treatment plan. The state attorney and the defense attorney must have an opportunity to be heard before the court releases the defendant. Upon successful completion of treatment, state's attorney must consider dismissal of charges.

Similar model process set up for felony cases that meet certain criteria. Under model, state's attorney has sole discretion on whether to divert the case.  Fla. Stat. § 916.136.
 

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

For mentally ill D's:
If felony, court may involuntarily commit to the Department of Children and Families on finding by "clear and convincing evidence that:
(a) The defendant has a mental illness and because of the mental illness:

1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant's well-being; or

2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; [AND]

(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities, community inpatient or outpatient settings, and any other mental health services, treatment services, rehabilitative services, support services, and case management services as described in s. 394.67, which would offer an opportunity for improvement of the defendant's condition have been judged to be inappropriate; and

(c) There is a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future." Fla. Stat. Ann. § 916.13; See also Fla. R. Crim. P. 3.212

For I.D. / Autistic D's

If felony, court may involuntarily commit to the Agency for Persons with Disabilities on finding by clear and convincing evidence that:
(a) the defendant has an I.D. or autism; (CLICK FOR MORE)
(b) there is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on himself or herself or another person;
(c) all available, less restrictive options are inappropriate; and 
(d) there is a substantial probability that the ID or autism causing incompetence will respond to training and D will regain competency in the reasonably foreseeable future.
Fla. Stat. § 916.302(1)

For all D's

If defendant is incompetent but does not meet commitment criteria, defendant may be released and court may require outpatient treatment as condition of release.  Fla. R. Crim. P. 3.212(d); Fla. Stat. § 916.304 [ID/Autistic Ds]; Fla. Stat. § 916.17 [Mentally ill]
 
Evaluation and services should ""be provided in community settings, in community residential facilities, or in civil facilities, whenever this is a  feasible alternative to treatment or training in a state forensic facility.""  Fla. Stat. § 916.105(3)

D's may receive treatment or training in a jail facility for up to 15 days following the date that the Dep't. of Children and Families or the Agency for Persons with Disabilities receives the commitment order and related paperwork if the D is awaiting admission into a department or agency facility.  Fla. Stat. § 916.107(1)(a)

If D is incarcerated, the court may order treatment to be administered at the custodial facility.  Fla. R. Crim. P. 3.212(c)(2)

For dually diagnosed D's

They should be placed in whichever facility of the Department of Children and Family Services OR the Agency for Persons with Disabilities is "most appropriate to address the symptoms that are the cause of the defendant's incompetence." Fla. Stat. § 916.302(3)

What is the test for restorability

"substantial probability that defendant will gain competency to proceed in the foreseeable future"  Fla. R. Crim. P. 3.212(d)

What is the procedure after restoration

The defendant must be transported, in accordance with s. 916.107, to the committing court's jurisdiction within 7 days after notification that the defendant is competent to proceed or no longer meets the criteria for continued commitment. A determination on the issue of competency must be made at a hearing within 30 days of the notification. If the defendant is receiving psychotropic medication at a mental health facility at the time he or she is discharged and transferred to the jail, the administering of such medication must continue unless the jail physician documents the need to change or discontinue it. To ensure continuity of care, the referring mental health facility must transfer the patient with up to 30 days of medications and assist in discharge planning with medical teams at the receiving county jail. The jail and department physicians shall collaborate to ensure that medication changes do not adversely affect the defendant's mental health status or his or her ability to continue with court proceedings; however, the final authority regarding the administering of medication to an inmate in jail rests with the jail physician. Notwithstanding this paragraph, a defendant who meets the criteria for involuntary examination pursuant to s. 394.463 as determined by an independent clinical opinion shall appear remotely for the hearing. Court witnesses may appear remotely.

Fla. Stat. § 916.13(2)

What is the procedure if there is a finding of unrestorability

Court must release D or state must initiate civil commitment proceedings. Fla. R. Crim. P. 3.212(d)

Court shall commit defendant for involuntary hospitalization if defendant meets criteria in § 394.467 or for outpatient commitment if defendant meets criteria in § 394.4655.

"(2) If the continuing incompetency is due to intellectual disability or autism, and the defendant either lacks the ability to provide for his or her well-being or is likely to physically injure himself or herself, or others, the defendant may be involuntarily admitted to residential services as provided by law."  Fla. R. Crim. P. 3.213(b)(2); Fla. Stat. § 916.303(2)

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

Charges dismissed without prejudice, but the court does not need to dismiss a charge if "the court in its order specifies its reasons for believing that the defendant is expected to become competent to proceed." Fla. R. Crim. P. 3.213(a)

If the defendant meets the criteria for commitment under section 394.467, Florida Statutes, the court shall commit the defendant to the Department of Children and Families for involuntary hospitalization solely under the provisions of law. If the defendant meets the criteria of section 394.4655, Florida Statutes, the court may order that the defendant receive outpatient treatment at any other facility or service on an outpatient basis subject to the provisions of those statutes.

Fla. R. Crim. P. 3.213(b)

If the continuing incompetency is due to intellectual disability or autism, and the defendant either lacks the ability to provide for his or her well-being or is likely to physically injure himself or herself, or others, the defendant may be involuntarily admitted to residential services as provided by law.

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

(1) 1 year if the charge is a misdemeanor;
(2)  2 years if incompetency is due to intellectual disability or autism;
(3) 3 years, unless a charge is listed in section 916.145, Florida Statutes; or
(4) after a finding that the defendant has remained incompetent for 5 continuous and uninterrupted years;
Fla. R. Crim. Pro. § 3.213