What is Competency to Proceed for Mental Illness

Understanding Competency to Proceed for Mental Illness: A Brief Overview for Tampa Defendants and Their Families

When first meeting a client, one of the first things an experienced Tampa attorney will assess is their competency to proceed. According to Section 916.12 of the Florida Statutes, a person is deemed legally incompetent to proceed if the defendant does “not have sufficient present ability to consult with her or his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against her or him.” It is considered unfair and a violation of due process to actively prosecute someone who cannot comprehend what is happening or assist in their defense.

Competency v. Sanity

A competency evaluation looks at the defendant’s mental condition at the time of a court proceeding, such as a trial, hearing or guilty plea. A sanity evaluation, on the other hand, examines the defendant’s mental condition at the time that the offense was committed.

The Evaluation Process

To determine competency, mental health experts are appointed through a motion that can be made by the defense, prosecutor, or the court on its own motion. The filing of the motion to appoint experts tolls the speedy trial period. See Baxter v. Downey, 581 So. 2d 596 (Fla. 2d DCA 1991). The court must pay for the evaluation(s). Court-appointed experts must have specific training as outlined in Section 961.111 of the Florida Statutes to ensure uniform application of competency criteria.

There Must Be Mental Illness

Before even assessing competency, mental health experts must first determine whether the defendant has a mental illness. If the defendant is incompetent for a reason other than mental
illness, such as having intellectual disability (previously called “mental retardation”) or autism, then different rules will apply. Rule 3.210, Florida Rules of Criminal Procedure, goes into more detail as to the procedure for raising the issue of mental incompetence to proceed and what is required.

The Competency Evaluation and Report

Rule 3.211, Florida Rules of Criminal Procedure sets out the requirements of the competency evaluation and report. Unfortunately, sometimes experts do not provide a complete report,
addressing all areas required by statute and rule. Criminal defense attorneys and judges may not even recognize these defects until they are pointed out later, by attorneys managing forensic
commitments for the Florida Department of Children and Families. This can lead to delays and reevaluations, causing mentally ill defendants to languish. Therefore, having an experienced Tampa
attorney to oversee the competency process is crucial to ensure the system treats a defendant fairly and expediently.

Factors Considered in Competency Evaluations

An examining expert must consider and include in their report the defendant’s capacity to:

• Appreciate the charges or allegations against them.
• Understand the range and nature of possible penalties.
• Comprehend the adversarial nature of the legal process.
• Disclose pertinent facts to counsel.
• Exhibit appropriate courtroom behavior.
• Testify relevantly.

Additionally, any other relevant factors deemed important by the expert should be included. See 916.12 (3) Fla. Stat.

Hiring Confidential Experts

Given the variability in court-appointed experts, it can be beneficial for a Tampa Attorney to hire confidential experts to evaluate the client, if the court appointed experts are off base. Their reports and testimony can be used during a competency hearing, along with the court-appointed expert reports. If the defense or the state retains and expert and waives confidentiality of the expert’s report, the court may appoint additional experts. The judge will make the final decision on competency after a hearing on the matter.

Timing

A status hearing must be held no later than 20 days after the motion to appoint experts is heard. Additional status hearings should be set if necessary to ensure a prompt resolution. Absent good cause, a final competency hearing must be conducted no later than 45 days from the motion date. See Florida Rule of Criminal Procedure 3.210 (b). Competency reports over six months old may be considered stale, since a person’s competency is fluid and can change over time. See DCF v.Kirshner, 380 So. 3d 502, 504 (Fla. 5th DCA 2024).

Treatment Options

Treatment for incompetent individuals charged with felony crimes can occur in the community or at an inpatient forensic treatment program. Section 916.12, Florida Statutes, defaults to community treatment and requires experts to state if such treatment is available. Section 916.13, Florida Statutes, only allows commitment to a forensic facility if no less restrictive alternatives are available and if there is a substantial probability that the mental illness causing incompetence will respond to treatment, allowing the defendant to regain competency in the foreseeable future. See DCF v. Pierre, 373 So. 3d 1272, 1277 (Fla. 2d DCA 2023)(because there was no clear and convincing evidence that the defendant’s condition will respond to treatment or that he will regain competency in the foreseeable future, the defendant did not meet the criteria for involuntary commitment); See also DCF v. Gilliland, 947 So. 2d 1262, 1263 (Fla. 5th DCA 2007)(granting relief where the defendant suffered from dementia and the medical testimony revealed little to no possibility that competency would be restored and explaining that the State’s options were to either institute a civil commitment proceeding or release the defendant).

Conditional Release Orders

Mentally incompetent persons not eligible for involuntary commitment are usually placed on a Conditional Release Order and treated at a non-secure facility or at home. An experienced Tampa
attorney will collaborate with community treatment providers like Gracepoint to evaluate placement options, including a study of the defendant’s residence for suitability to live at while
undergoing outpatient treatment. Gracepoint staffs court liaisons for this purpose.

Family Expectations vs. Reality

Family members often hope that a criminal arrest will lead to necessary mental health treatment for their loved one. Unfortunately, treatment for incompetence to proceed is typically aimed at achieving the minimal level of competence to be able to prosecute the individual. This treatment may include administering psychotropic medication, competency training classes, or both. However, forensic commitments can also provide valuable insights into the defendant’s overall functioning and criminal culpability, potentially mitigating the crime and leading to a more favorable resolution. An experienced Tampa attorney will develop a comprehensive mitigation plan outside of the competency process that may include mental health evaluations and placement for treatment to address underlying mental health needs.

Ongoing Legal Work and Monitoring

An experienced Tampa attorney will continue to work on the criminal case during any forensic commitment or conditional release period, monitoring treatment progress and maintaining regular communication with the client and providers. Florida Rule of Criminal Procedure 3.210 (a)(2) states “the incompetence of the defendant does not preclude such judicial action, hearings on motions of the parties, discovery proceedings, or other procedures that do not require the personal participation of the defendant.”

Finality of Incompetency Period

Florida Statute 916.145 mandates that charges must be dismissed without prejudice after five continuous years of incompetence unless the court believes the defendant will become competent in the foreseeable future. Some non-violent charges can be dismissed within three years. Because the dismissal is “without prejudice,” charges may be refiled if the defendant regains competence. If the defendant is found to be a harm to himself or others, the defendant may be civilly committed under Chapter 394, Florida Statues, the Florida Mental Health Act, also known as the Baker Act, even though their charges have been dismissed.

The Brancato Law Firm, P.A. Has Extensive Experience in Handling Competency to Proceed
cases

Navigating the complexities of criminal justice and mental health systems can be challenging, even for experienced criminal defense attorneys. If you need a Tampa attorney who understands these systems and can develop effective treatment plans and case resolutions, Rocky Brancato has the expertise to guide you through this intersection. Contact us at 813-727-7159 to schedule a free consultation today.