Department of Children & Families v. State ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed September 9, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2060
Lower Tribunal No. 10-7848
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Department of Children and Families,
Petitioner,
vs.
The State of Florida and C.Z.,
Respondents.
A Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Ariana Fajardo Orshan, Judge.
Javier A. Ley-Soto, Chief Regional Counsel, and Carlos A. Garcia, Assistant
Regional 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 SUAREZ, C.J., and SHEPHERD and ROTHENBERG, JJ.
SHEPHERD, J.
The Florida Department of Children and Families seeks certiorari relief from
a trial court order requiring it to place a chronically homeless, criminal defendant,
who is not restorable to competency to stand trial, in a secure, locked facility to
prevent him from wandering off and providing for his daily needs. The defendant
has been declared ineligible for commitment under the Baker Act, §§ 394.451 et
seq., Fla. Stat. (2011), the usual law pursuant to which an individual who is
incapable of caring for himself is involuntarily committed for treatment. We grant
the petition and quash the order of the lower court. A summary of the defendant’s
course through the criminal justice system is necessary to explain our decision.1
Facts and Procedural History
C.Z. is a mentally ill individual who has been cycling through the criminal
justice system for more than ten years. The encounter which resulted in this case
occurred on March 11, 2010. On that date, City of Miami police arrested C.Z. on a
misdemeanor charge of criminal mischief, which escalated into felony charges of
resisting arrest and battery on a law enforcement officer. In May 2010, the trial
court ordered C.Z. to be evaluated to determine his competency to stand trial. On
June 29, 2010, the trial court held an evidentiary hearing, and found him
1 The charges against the defendant have recently been dismissed without prejudice
pursuant to section 916.145 of the Florida Statutes (2014). However, we agree
with the parties that this is a case that is likely to recur, and accordingly decline to
dismiss the case as moot. See Gregory v. Rice, 727 So. 2d 251, 252 (Fla. 1999)
(recognizing mootness does not destroy appellate jurisdiction on issues of great
public importance or which are likely to recur).
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incompetent to stand trial. This in turn led to an order of involuntary commitment
to the Department for treatment pursuant to section 916.13, Florida Statutes
(2011).
On May 18, 2011, after further psychological testing, the trial court deemed
C.Z. non-restorable. This determination meant C.Z. could no longer be held under
section 916.13. See Oren v. Judd, 940 So. 2d 1271 (Fla. 2d DCA 2006).
Nevertheless, it was plain to all involved – the judge, the prosecutor and defense
counsel – that while C.Z. failed to meet the legal requirements necessary to be
declared competent to stand trial, he was also not capable of caring for himself.
For the most part, the mental health professionals also held the opinion that C.Z.
was ineligible for involuntary civil commitment under the Baker Act. See §
394.467, Fla. Stat. (2011). By default, the only option the trial court had available
to provide placement for C.Z. was through conditional release, pursuant to section
916.17 of the Florida Statutes and Florida Rules of Criminal Procedures 3.212(d)
and 3.219. With the assistance of the State, Office of the Public Defender, and all
available mental health professionals and facilities, a succession of judges assigned
to this case, including the one who issued the order on appeal, made yeopersons’
efforts to lawfully secure C.Z. from self-harm (often traceable to his failure to self-
medicate), as well as harm by others, and to protect the community if C.Z. returned
to living on the streets. The following is a chronology of those efforts:
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 May 17, 2011: The defendant was ordered to reside at The Manor,
while receiving services from the Fellowship House Program.
 June 21, 2011: The defendant was arrested for leaving The Manor
without permission of the court, a violation of the defendant’s
conditional plan of release.
 June 23, 2011: Pursuant to a court order, the defendant was evaluated
by Dr. Ralph Richardson, who concluded the defendant required a
locked-down program with 24-hour supervision due to his mental
illness.
 September 1, 2011: The defendant was ordered to reside at Forensic
Acute Stabilization and Treatment Program (FASTrack), a short-
term, locked facility with 24-hour supervision.
 May 24, 2012: FASTrack advised the defendant had received all of
the benefit possible from the FASTrack program, and the defendant
was transferred to Passageway Residence of Miami-Dade County.
 July 19, 2012: The defendant resisted his placement at the
Passageways Residence, and was removed to Greenview Assisted
Living Facility, with day treatment at the Fellowship House.
 January 23, 2013: Following a sexual assault on a staff member, the
defendant was transported to Westchester Hospital for psychiatric
stabilization. Greenview refused to allow the defendant back into its
facility.
 February 13, 2013: The defendant was ordered to reside at New
Greenview Assisted Living Facility, a sister facility to Greenview
Assisted Living Facility, with day treatment at Fellowship House.
 March 1, 2013: The court issued a warrant for the defendant’s arrest
for absconding from New Greenview Assisted Living Facility. The
warrant was served on March 4, 2013.
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 March 25, 2013: Again, the court released the defendant back to New
Greenview Assisted Living Facility, with day treatment at
Fellowship House.
 April 19, 2013: The court issued a second warrant for the defendant’s
arrest for absconding from New Greenview Assisted Living Facility.
 April 25, 2013: The court authorized a conditional release plan
requiring the defendant to reside at Maylu Retirement Home.
 May 8, 2013: The court issued another warrant for the defendant’s
arrest for absconding from the Maylu Retirement Home.
 May 21, 2013: When the defendant walked into the courthouse in a
disheveled, unclean condition, the court took him into custody and
ordered him transported to the Miami Behavioral Crisis Stabilization
Unit.
 June 7, 2013: The court rejected a proposed conditional release plan
to Superior Living of Little Havana and any plan to release the
defendant to an assisted living facility, finding the levels of staff
supervision and ingress and egress control at an assisted living
facility inadequate to ensure proper care for the defendant.
 July 15, 2013: The court ordered the Department to place the
defendant in a secure, locked facility, where his daily needs can be
provided for and staff can prevent him from wandering off and
becoming a danger to himself and others.
With this last order, the two-year cooperative efforts of the State, public defender
and trial court to provide mental health assistance to C.Z. dissolved.
With the exception of short-term crisis stabilization, all of C.Z.’s court-
ordered placements during the two-year period were to facilities which were lightly
staffed and not secured or locked in any conventional sense. Generally, this is the
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type of facility to which a defendant is committed under the conditional release
statute for longer term residency and outpatient psychiatric services. In contrast,
commitment and treatment pursuant to section 916.13 occurs in secured and locked
facilities. However, the liberty interests, which lie at the heart of our nation’s
heritage, preclude the State from holding an individual indefinitely against his will
on criminal charges when it is plain that he can never be brought to court to answer
for his crimes. See Jackson v. Indiana, 406 U.S. 715, 738 (1972). It is that interest
which has arisen from its slumber in this case, and which compels us in the end to
quash the order under review.
Analysis
“Certiorari review is proper when it is alleged that the circuit court's
interpretation of a statute violates clearly established law or when it fails to follow
the dictates of a statute, and the error is sufficiently egregious as to result in a
miscarriage of justice.” In re Asbestos Litig., 933 So. 2d 613, 615 (Fla. 3d DCA
2006) (citing Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003));
see also Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000)). Certiorari
jurisdiction lies to rectify a trial court order to the Department to assume treatment
responsibilities for an individual beyond what is required by statute. See Dep’t of
Children & Families v. Carmona, 159 So. 3d 165 (Fla. 2d DCA 2015); Dep’t of
Children & Family Servs. v. Amaya, 10 So. 3d 152, 154 (Fla. 4th DCA 2009); Fla.
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Dep’t of Children & Families v. Davis, 923 So. 2d 1290 (Fla. 3d DCA 2006).2
This is such a case.
We do not underestimate the predicament in which the trial judge found
herself in this case. For two years, the court, the State and the Office of the Public
Defender had labored to provide assistance to C.Z. As of the time of the hearing in
this case, C.Z. could no longer be held under section 916.13, and he was ineligible
for involuntary commitment under the Baker Act. C.Z. had been placed in and
walked out of various residential treatment facilities, with interim periods in
stabilization facilities. As the Department’s diversion specialist opined, “I don’t
think there’s anything that’s offered in the community right now that he hasn’t
been to or has been to.” C.Z.’s preferred living arrangement, by all accounts, is on
the streets of the City of Miami; but, when allowed to live there, C.Z.
“decompensates.” The cycle then repeats.
On these facts, the trial court took what was her only last shot at providing
needed assistance to C.Z. She ordered the Department to create a placement for
C.Z.:
Therefore, this Court further ORDERS and ADJUDGES that DCF
place [C.Z.] in a secure locked facility to provide for his daily needs
such as; food, shelter, medication administration and personal hygiene
and to prevent him from wondering (sic) and becoming a danger to
2The Department also has standing to bring such a petition, despite the fact that it
was not a party to the criminal case or commitment proceeding. See
Carmona, 159 So. 3d at 166.
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himself and others. Further, the mental health professionals involved
in this case should immediately begin to work together to find suitable
options for future placement; [C.Z.] requires a facility that will
redirect him when he tries to leave and a facility that has supervision.
Further, he would benefit greatly from a smaller facility. [C.Z.], if left
unsupervised, will inadvertently leave an unlocked or unsupervised
facility which places him in harm's way. [C.Z.’s] chronic mental
illness prevents him from making appropriate decisions to protect
himself.
In so doing, the trial judge acknowledged the only possible authority to support her
decision was section 916.17. This statute, entitled “Conditional release,” reads in
relevant part:
(1) Except for an inmate currently serving a prison sentence, the
committing court may order a conditional release of any defendant in
lieu of an involuntary commitment to a facility pursuant to s.
916.13 or s. 916.15 based upon an approved plan for providing
appropriate outpatient care and treatment….
(2) Upon the filing of an affidavit or statement under oath by any
person that the defendant has failed to comply with the conditions of
release, that the defendant's condition has deteriorated to the point that
inpatient care is required, or that the release conditions should be
modified, the court shall hold a hearing within 7 days after receipt of
the affidavit or statement under oath. After the hearing, the court may
modify the release conditions. The court may also order that the
defendant be returned to the department if it is found, after the
appointment and report of experts, that the person meets the
criteria for involuntary commitment under s. 916.13 or s. 916.15.
(emphasis added). Unfortunately, the statute does not support the action taken by
the trial court.
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By its terms, subsection (1) of the statute authorizes an outpatient alternative
to a locked involuntary commitment environment. The subsection expressly states
that it is to be employed “in lieu of an involuntary commitment.” “In lieu of”
means “in place of.” Bryan A. Garner, A Dictionary of Modern Legal Usage, 449
(2d ed. 1995). Here, “in lieu of” means in place of involuntary commitment. The
provision carries out the intent of the Florida legislature expressed in section
916.105(3) that “evaluation and services to defendants who have mental illness . . .
be provided in community settings, in community residential facilities, or in civil
facilities, whenever feasible.” In our view, this subsection does not and is not
intended to create a separate statutory foundation for use by a trial court to order
the Department to house and treat a mentally ill person who has been found non-
restorable to competency to stand trial.
Nor does subsection (2) of the conditional release statute assist the court in
upholding the commitment ordered in this case. This subsection first establishes
that in the event a defendant has failed to comply with the conditions of his release,
the conditions may be modified. Here, the court has found that there is no
acceptable modification that is available. Subsection (2) then continues: “The
court may also order that the defendant be returned to the [D]epartment if it is
found, after the appointment and report of experts, that the person meets the
criteria for involuntary commitment under s. 916.13 or s. 916.15.” C.Z. meets
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neither of these requirements. As we have noted already, C.Z. has been found to
be non-restorable under section 916.13, and section 916.15 deals with defendants
who have been adjudicated not guilty by reason of insanity. Thus, this subsection
is likewise inapplicable in this case.
Counsel for C.Z. argues, nevertheless, that the Department is statutorily
required to create “someplace for C.Z. to go.” Counsel reminds us that even under
medication, C.Z. is actively psychotic. He further points out the fact that, chiefly
because C.Z. will not obtain the required medication or self-medicate while living
on the streets, C.Z. deteriorates to a sub-human existence.3 Counsel then makes
the attractive argument that “The Florida legislature has charged the Department
with the responsibility for ‘the planning, evaluation, and implementation for a
complete and comprehensive statewide program of mental health, including
community services . . . ,’ §394.457(2)(a), Fla. Stat. (2012),” and, further quoting,
that “The department is responsible for . . . exercising supervision of mental health
programs of, and the treatment of patients at community health facilities, other
facilities, for persons who have a mental illness, and any agency or facility
providing services to patients pursuant to this part.” Id. However, counsel omits
3We do not believe counsel is overwrought in his advocacy on this point. For
example, when C.Z. walked into the criminal courthouse unexpectedly on May 21,
2013, days after he had absconded from his residential placement, he was thin,
unstable in gait, dirty, and hallucinatory to the point of having a large blowfly on
his index finger, which he was petting as one would pet a dog or a cat.
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the directive from the Legislature, found in the same sub-section, that the services
shall be provided as “authorized and approved by the Legislature, based on the
annual budget of the department.” The Legislature has not established a mental
health program or service for individuals in C.Z.’s situation. Counsel’s cavil is
therefore with the Legislature, not the Department.
The case before us is indistinguishable from Carmona, 159 So. 3d at 165.
As in our case, the trial court found William Carmona incompetent to proceed to
trial, and non-restorable. The trial court then ordered Mr. Carmona to be placed
indefinitely in the custody of the Department pursuant to the conditional release
provision of section 916.17(1), and that the Department assume the cost of the
placement. The Second District Court of Appeal quashed the order of the circuit
court, stating:
[S]ection 916.13 sets the criteria that must be established before the
trial court has the authority to involuntarily commit an individual for
treatment. If an individual is found to have met these criteria and is
thereby subject to being committed to the Department for treatment,
section 916.17 provides an alternative to the residential commitment
known as a “conditional release.” In its April 20, 2014, order, the trial
court specifically found that Mr. Carmona “does not meet the criteria
for commitment to a treatment facility of the Department of Children
and Families as provided in [section] 916.13.” And “an incompetent
defendant may not be committed to [the Department] if the statutory
criteria are not met.” Amaya, 10 So. 3d at 156.
159 So. 3d at 167. In Carmona, as in this case, the statutory criteria were not met.
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Amaya, 10 So. 3d at 152, cited by the Second District Court of Appeal in
Carmona, is a similar case. There, the defendant was arrested for forceful sexual
battery of his 13-year-old stepdaughter. The day after his arrest, he complained of
weakness in his left side and continuous headache and was transported to the
hospital. He was diagnosed with an inoperable brain tumor and was advised he
had approximately one year to live. In further proceedings, Amaya was found not
competent to proceed to trial, and that he was not likely to be restored to
competency because of the advanced stage of his brain tumor. The trial court
ordered him to be conditionally released to the care and custody of the Department
pursuant to section 916.17. The Fourth District Court of Appeal quashed the order.
As in Carmona, and as we decide today, that Court found that “Section 916.17
provides an alternative to placement in a treatment facility for defendants
committed to DCF under section 916.13. Contrary to the trial court’s order, an
incompetent defendant may not be committed to DCF if the statutory criteria [in
section 916.13] are not met.” Id. at 155-56.
When a defendant is found non-restorable to competency and, therefore,
does not meet the criteria for commitment, the next step is either to initiate civil
commitment under the “Baker Act” or to release the defendant. See, e.g., State v.
Miranda 137 So. 3d 1133, 1135 (Fla. 3d DCA 2014) (citing Jackson v. Indiana 406
U.S. 715 (1972)); Dep’t of Children & Family Servs. v. State & Barnett, 124 So.
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3d 430, 433-34 (Fla. 2d DCA 2013) (citing Amaya, 10 So. 3d at 157). Florida
Rule of Criminal Procedure 3.219(d) purports to create a short, safe harbor-like
transition period before release, but only “for a period not to exceed 1 year.” This
time period had long expired by the time C.Z.’s final violation of his conditional
release plan had occurred. The only lawful alternative available to the trial judge
in this case was to release the defendant.
Context requires us to remind ourselves that any assertion the court lacked
statutory authority for its action in this case must be analyzed with utmost care.
The involuntary commitment statute of this state is a “massive curtailment of
liberty.” Shuman v. State, 358 So. 2d 1333, 1335 (Fla. 1978) (quoting Humphrey
v. Cady, 405 U.S. 504, 509 (1972)). As the Florida Supreme Court recognized in
Pullen v. State, 802 So. 2d 1113, 1117 (Fla. 2001), “an individual who faces
involuntary commitment to a mental health facility has a liberty interest at stake.”
See also State v. Goode, 830 So. 2d 817 (Fla. 2002). “Those whom the State seeks
to involuntarily commit to a mental institution are entitled to the protection of our
Constitutions ….” Shuman, 358 So. 2d at 1335; see also Morel v. Wilkins, 84 So.
3d 226 (Fla. 2012); Mitchell v. State, 911 So. 2d 1211 (Fla. 2005). The Florida
Legislature recognizes as much in the preamble to Chapter 916. See §916.105(3),
Fla. Stat. (2014) (stating that “It is the intent of the Legislature that treatment or
training programs for defendants who are found to have mental illness . . . and are
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involuntarily committed . . . be provided in a manner . . . which insures the rights
of the defendants as provided in this chapter.”).
In the instant case, the trial court used section 916.17 as its statutory
authority to find a placement for C.Z. beginning in May 2011, when C.Z. was first
found to be non-restorable to competency and no longer met the criteria for
involuntary commitment under section 916.13. Under subsection (2), the trial
court modified C.Z.’s release conditions on five different occasions for non-
compliance. In an effort to find adequate placement, the trial court ordered the
Department to “place [C.Z.] in a secure locked facility to provide for his daily
needs … and to prevent him from wondering (sic) and becoming a danger to
himself and others.” To implement this directive, the trial court returned C.Z. to
the custody of the Department. The order is no different in its effect on C.Z. than
the original order of commitment issued under section 916.13(1) of the Florida
Statutes, albeit with fewer safeguards.
Due to the statutory constraints, the trial court was faced with the difficult
decision of either placing C.Z. in an unsecured community residential facility,
against the advice of the evaluating psychologists, or releasing C.Z. out on the
street. However, as was well stated in Barnett, 124 So. 3d at 433:
While we certainly sympathize with the trial court's frustrations and
unwillingness to contribute to potential chaos, we note that the rule of
law simply does not permit a trial court to fashion its own remedy in
derogation of statutory limitations, and good intentions cannot expand
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the trial court's power in this regard. It is up to the legislature—not the
trial court or this court—to close any gaps that may exist in the
statutory scheme and to address the inadequacies of the existing law
when applied to facts such as these.
We quash the order under review.
Petition granted, order quashed.
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