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.
Finkelstein, Public Defender, and Sarah Sandler, Assistant
Public Defender, Fort Lauderdale, for petitioner.
Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for respondents.
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.
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.
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
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.
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).
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
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 ...