final until disposition of timely filed motion for rehearing.
of Certiorari to the Circuit Court for Monroe County, Timothy
J. Koenig, Judge. Lower Tribunal Nos. 17-875-A-K &
Patricia Salman, Assistant Regional Legal Counsel, for
Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General; Carlos J. Martinez, Public Defender, and
John Eddy Morrison, Assistant Public Defender, for
EMAS, FERNANDEZ and LUCK, JJ.
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).
Background and Procedural History
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.
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.
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.
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.
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.
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 ...