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Marino v. State

Florida Court of Appeals, Fourth District

July 17, 2019

ALI MARINO, Petitioner,
STATE OF FLORIDA, and GREGORY TONY, as Sheriff of Broward County, Florida, Respondents.

         Not final until disposition of timely filed motion for rehearing.

          Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ari Abraham Porth, Judge; L.T. Case No. 17-13757-CF10A.

          Howard Finkelstein, Public Defender, and Sarah Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.

          Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner, Assistant Attorney General, West Palm Beach, for respondents.

          PER CURIAM.

         The trial court ordered an incompetent criminal defendant detained in jail without ordering competency restoration treatment and without making any findings that would permit pretrial detention. We previously granted Defendant's habeas corpus petition by order, and this opinion follows to further explain our reasoning and to clarify when and how a court may order competency restoration treatment in jail.


         Defendant is homeless and suffers from mental illness. In December 2017, he was arrested and charged with aggravated assault with a deadly weapon following an incident at an alcohol rehabilitation meeting. In July 2018, the court found Defendant incompetent to proceed. The order provided that "[t]he issue of placement will be addressed in a subsequent order (if needed)." The case was then transferred to the mental health division where six competency placement hearings were held between August and November 2018. No placement was found for Defendant.

         In December 2018, the court released Defendant to standard pretrial release supervision. After Defendant failed to report, the court issued a no bond warrant and later issued a no bond capias after Defendant failed to appear for a placement hearing. Defendant was eventually arrested in February 2019.

         In April 2019, defense counsel moved to have Defendant released on his own recognizance or, alternatively, on supervised release. During the hearing on the motion, the prosecutor agreed to Defendant's conditional release. At the time of the hearing, the record reflects that Defendant had been referred to a treatment program, but he refused to cooperate or sign the required paperwork. Although the court expressed a desire to release the homeless Defendant, it refused to release him to the street corner listed as his address. The court accordingly denied the motion and ordered Defendant to remain in custody with no bond. The court made no findings of fact or conclusions of law showing that the constitutional and statutory criteria for pretrial detention were met in this case. Nor did the court order that Defendant receive competency restoration treatment while incarcerated.


         Florida Rule of Criminal Procedure 3.212 provides that if the trial court finds that an incarcerated defendant is incompetent to proceed, the court may order (1) treatment in the community as a condition of release; or (2) "treatment to be administered at the custodial facility or may order the defendant transferred to another facility for treatment or may commit the defendant." Fla. R. Crim. P. 3.212(c)(1)-(2); see also Miller v. State, 960 So.2d 7, 9 (Fla. 4th DCA 2007).

         When a court orders treatment in a custodial facility, it must ensure "that treatment appropriate for the defendant's condition is available" at the facility. Fla. R. Crim. P. 3.212(c)(1). The court must also put in place procedures for periodic review like those required when a defendant is involuntarily committed. See Fla. R. Crim. P. 3.212(c)(5); §§ 916.13(2), .302(2)(a), Fla. Stat. (2018). This will ensure that the court remains apprised of the defendant's condition and that the defendant is promptly afforded an opportunity to proceed to trial once competency is regained. Such periodic review will allow courts to reconsider treatment options and order commitment or conditional release if subsequently found appropriate. Every effort should be made to avoid an incompetent defendant languishing in jail without adequate treatment and without an adequate mechanism to monitor the defendant's condition.[1]

         Treatment in a custodial facility, however, may be ordered only where the constitutional and statutory criteria for pretrial detention are met. See Fla. Const., art. I, § 14 ("If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained."); § 907.041(4)(c), Fla. Stat. (2018) (setting out the circumstances when a court may order pretrial detention). This is because an incompetent criminal defendant is presumed innocent and cannot be denied pretrial release based solely on his or her incompetence to proceed. See State v. Blair, 39 So.3d 1190, 1192 (Fla. 2010); State v. Miranda, 137 So.3d 1133, 1136-39 (Fla. 3d DCA ...

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