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Department of Children And Families v. Garcia

Florida Court of Appeals, Third District

April 24, 2018

Department of Children and Families, Petitioner,
v.
Adalberto Garcia, et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

          A Writ of Certiorari to the Circuit Court for Monroe County, Timothy J. Koenig, Judge. Lower Tribunal Nos. 17-875-A-K & 17-876-A-K

          Patricia Salman, Assistant Regional Legal Counsel, for petitioner.

          Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General; Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for respondents.

          Before EMAS, FERNANDEZ and LUCK, JJ.

          OPINION

          PER CURIAM.

         The state department of children and families petitions for a writ of certiorari from the trial court's order involuntarily committing defendant Adalberto Garcia to the department after Garcia was found incompetent to proceed with his pending felony lobster-catching charges. We grant the petition because the trial court exceeded its jurisdiction by requiring the department to involuntarily commit Garcia where there was no evidence of a substantial probability that he would regain competency to proceed in the reasonably foreseeable future, as required for involuntary commitment under Florida Statutes section 916.13(1)(c).

         Factual Background and Procedural History

         On August 2, 2017, a Monroe County sheriff's deputy found the eighty-one year old Garcia walking with a five pound bucket full of Florida spiny lobsters. There were twenty-nine lobsters in the bucket caught out of season, with eight of the lobsters smaller than the minimum allowable size. Garcia was arrested on felony lobster violations and booked in the Monroe County detention center.

         While still in custody, the trial court ordered that Garcia be evaluated for competency to stand trial. Dr. Tanju Mishara conducted the competency evaluation on November 20, 2017. Dr. Mishara opined that Garcia was not competent to stand trial because of his impairment "due to cognitive decline into dementia which happens to many seniors his age." Dr. Mishara also believed that while Garcia met the criteria for involuntary commitment, "it [was] quite doubtful that his competency can be restored." "[I]t is likely, " Dr. Mishara explained, "that his dementia will progess, and he will experience more cognitive function loss with time." "[G]iven his age, treatment [was] not likely to restore his competence to proceed appreciably." Dr. Mishara recommended that Garcia be placed in a senior assisted living facility where he would be supervised for his self-care needs.

         The trial court held a non-testimonial competency hearing on February 26, 2018, where it received Dr. Mishara's written report as evidence. Based on Dr. Mishara's report, the trial court found Garcia incompetent to proceed with the trial in the case. The trial court also found that Garcia met the criteria for commitment to a treatment facility as provided in section 916.13(1), and committed Garcia to the department to be placed in a secure mental health treatment facility. The sheriff was directed, within fifteen days, to transport Garcia to the treatment facility designated by the department.

         The department moved for rehearing and reconsideration of the trial court's commitment order. In the rehearing motion, the department highlighted the part of Dr. Mishara's report where she opined that it was doubtful Garcia's competency could be restored. The department also pointed the trial court to the involuntary commitment statute, section 916.13(1), which provides that the defendant may be involuntarily committed only on a finding by clear and convincing evidence that there's a substantial probability he will respond to treatment and will regain competency to proceed in the reasonably foreseeable future. The department cited to a case from the Fifth District Court of Appeal, Department of Children & Families v. Ewell, 949 So.2d 327 (Fla. 5th DCA 2007), where the appellate court granted the department's certiorari petition after the trial court ordered the defendant involuntarily committed without evidence the defendant could be restored to competency. The trial court denied the rehearing motion on March 12, 2018.

         The next day, the department served a petition for writ of certiorari. Like the rehearing motion, the department petitioned to quash the trial court's involuntary commitment order because there was no evidence supporting the trial court's finding that Garcia met the requirement for involuntary commitment that there be a substantial probability he will respond to treatment and regain competency in the near future.

         We ordered Garcia and the Attorney General's office to respond to the department's petition. Garcia responded that we should grant the certiorari petition because all competent evidence - i.e., Dr. Mishara's report - indicated that Garcia was not restorable, and therefore, he could not be committed ...


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