DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALAN NERETTE,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
No. 4D21-630
[July 21, 2021]
Petition for writ of mandamus to the County Court for the Seventeenth
Judicial Circuit, Broward County; Melinda K. Brown, Judge; L.T. Case
Nos. 19-008316MM10A and CACE20-21377.
Howard Finkelstein, Public Defender, and James K. Rubin, Assistant
Public Defender, Fort Lauderdale, for petitioner.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for respondent.
FORST, J.
Petitioner Alan Nerette seeks a writ of mandamus and/or prohibition
directing the trial court to dismiss the State’s misdemeanor charge for
exposure of sexual organs. He argues the trial court erred in denying his
Florida Rule of Criminal Procedure 3.213 motion to dismiss when he was
presumed incompetent for more than one year before filing the motion. As
set forth below, we treat Petitioner’s filing as a petition for writ of certiorari.
Petitioner is correct that he was presumed incompetent for more than one
year before he filed the motion to dismiss. However, because he failed to
submit to a court-ordered competency evaluation before rule 3.213’s one-
year time limit ran, we deny the petition.
Background
After the State charged Petitioner with one misdemeanor count of
exposure of sexual organs, Petitioner moved for release on recognizance.
The trial court granted release and appointed an expert to determine his
competency. Petitioner completed an evaluation with Dr. Faraldo, and on
August 23, 2019, the trial court entered an order finding he was
incompetent to proceed.
The trial court subsequently revoked Petitioner’s supervision by pretrial
services for violating a condition of release. He was taken to jail and held
on bond. Petitioner again moved for release on recognizance or,
alternatively, to reduce bond. On February 3, 2020, the trial court held a
hearing and entered an order appointing Dr. Day to determine Petitioner’s
competency.
Petitioner submitted to the evaluation, and Dr. Day’s report opined
Petitioner was incompetent to proceed to trial but had a fair possibility of
restoration of competency with medication. On February 21, 2020, the
trial court entered an order granting Petitioner’s release from jail based on
his incompetence. Four months later, the State requested that Dr. Day
reevaluate Petitioner. The trial court granted that request, ordered
Petitioner to submit to another competency evaluation, and set a hearing
for June 22, 2020.
At the hearing, Petitioner’s counsel notified the trial court that, due to
COVID-19, Dr. Day was not conducting in-person evaluations. Counsel
objected to a remote evaluation. The State did not object to counsel finding
another doctor who would conduct an in-person evaluation. The trial
court ordered Petitioner to be evaluated by July 23, 2020, whether the
evaluation was conducted remotely by Dr. Day or in-person with a different
doctor.
Petitioner never submitted to the evaluation. Instead, on September 1,
2020, he filed a motion to dismiss his misdemeanor charge, pursuant to
Florida Rule of Criminal Procedure 3.213(a)(1), arguing that he had
remained incompetent for more than one year. Petitioner claimed he was
first found incompetent to proceed on August 23, 2019, and the trial court
never entered an order after that date finding his competency had been
restored.
After a hearing, the trial court issued an order denying Petitioner’s
motion to dismiss. The court explained that Petitioner had been ordered
to undergo a competency evaluation before July 23, 2020. The trial court
found Petitioner never submitted to an evaluation before that date, did not
avail himself to the court until the hearing on the motion to dismiss, and
was not in contact with counsel since he was last ordered to complete a
reevaluation. The trial court also ordered Petitioner to be reevaluated by
Dr. Day. The court’s order is the subject of our review.
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Analysis
The trial court’s denial of a motion to dismiss pending charges due to
incompetence to proceed can be considered through certiorari review. See
Bryant v. State,
99 So. 3d 612, 613 (Fla. 5th DCA 2012); Hines v. State,
931 So. 2d 148, 149 (Fla. 1st DCA 2006); Downing v. State,
617 So. 2d
864, 865 (Fla. 1st DCA 1993); Ricciardelli v. State,
453 So. 2d 199, 200
(Fla. 4th DCA 1984).
Petitioner argues the trial court was required to dismiss his charge
pursuant to Florida Rule of Criminal Procedure 3.213 (2020) because the
trial court found him incompetent to proceed more than one year before
he filed the motion to dismiss and because the court never made a finding
of restoration. Florida Rule of Criminal Procedure 3.213(a)(1) provides in
relevant part:
(a) Dismissal without Prejudice during Continuing
Incompetency.
After a determination that a person is incompetent to stand
trial or proceed with a probation or community control
violation hearing, the charge(s):
(1) shall be dismissed 1 year after a finding if the charge is a
misdemeanor . . . provided that the court finds that the
defendant remains incompetent to stand trial or proceed with
a probation or community control violation hearing unless the
court in its order specifies its reasons for believing that the
defendant is expected to become competent to proceed.
Id. (emphases added).
“Once a defendant is found incompetent to stand trial, there is a
presumption of continuing incompetency.” State v. Smith,
982 So. 2d 756,
758 (Fla. 4th DCA 2008). Where the State does not offer proof that the
defendant’s mental status has changed, the trial court does not abuse its
discretion in dismissing the charges after expiration of rule 3.213’s
applicable time period.
Id.
At the time Petitioner filed his motion to dismiss, it had been slightly
more than a year since he had initially deemed incompetent (on August
23, 2019). However, on June 22, 2020, the trial court had ordered
Petitioner to be reevaluated by July 23, 2020, one month before the one-
year anniversary of the initial finding of incompetency. Petitioner refused
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to comply with this order and evaded contact with both his counsel and
the court and ultimately moved to dismiss the misdemeanor charge.
Petitioner may not take advantage of his failure to abide by the court’s
order. Had he submitted to the reevaluation by July 23, 2020 as ordered,
Dr. Day could have opined Petitioner was competent to proceed, as Dr.
Day’s February 2020 report stated Petitioner had a fair possibility of being
restored to competency with medication.
We conclude that Florida Rule of Criminal Procedure 3.213(a)’s
directive that misdemeanor charges “shall be dismissed 1 year after a
finding” of incompetence inapplicable under these circumstances.
(emphasis added). The directive is based on the presumption of continuing
incompetence, but a defendant cannot thwart the State’s ability to rebut
this presumption by refusing to be examined. The trial court is not a
potted plant in this scenario. Here, the trial court appropriately did not
“find[] that the defendant remains incompetent to stand trial[,]”
id., and
instead referred Petitioner to Dr. Day for the competency examination that
Petitioner had evaded in June and July of 2020.
Conclusion
The trial court did not depart from the essential requirements of law in
refusing to dismiss the charge under these circumstances. Discretionary
writ relief is not merited. The petition is denied.
Petition treated as petition for writ of certiorari and denied.
GERBER, J., concurs.
WARNER, J., specially concurs with opinion.
WARNER, J., specially concurring.
I concur in the majority’s denial of the petition for writ of certiorari and
write to address the distinction between this case and State v. Morris,
297
So. 3d 594 (Fla. 4th DCA 2020). Petitioner contends that Morris stands
for the proposition that no hearing was necessary in this case because by
legal presumption petitioner remained incompetent for a period of one
year. Thus, he argues he had a right to dismissal of his charges under
Florida Rule of Criminal Procedure 3.213(a)(1). Morris, however, was
based on section 916.145, Florida Statutes (2019), which provides that
charges against a defendant adjudicated incompetent to proceed shall be
dismissed after five years of continuous incompetence, unless the court
specifies its reasons for believing the defendant will become competent.
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Under the statute, the court does not need to make a finding of continued
incompetency. However, under rule 3.213(a)(1), the misdemeanor charges
shall be dismissed after one year of a finding of incompetency, “provided
that the court finds that the defendant remains incompetent to stand trial
. . . .” Thus, the court is required to make a finding of incompetency to
authorize dismissal under the rule, and dismissal of misdemeanor charges
after one year of incompetency is conditional, rather than mandatory as it
is under section 916.145.
There does appear to have been considerable confusion regarding the
ordered examination. The court directed that a written order be prepared
to clarify the court’s ruling, but no order was prepared. The examination
was to have occurred prior to a July 23, 2020 hearing, but that hearing
was cancelled. The record shows that both the State and the defense
dropped the ball in securing an evaluation, as the State could have alerted
the court that the evaluation had not occurred. Had it done so, the court
could have ordered petitioner to be taken into custody until the
determination of his competency was resolved. See Fla. R. Crim P.
3.210(b)(3).
Nevertheless, the court had to make a finding of incompetency to
dismiss the charges. Because of that, I agree that requiring the
competency evaluation prior to dismissing the misdemeanor charges
against petitioner is not a departure from the essential requirements of
law.
* * *
Not final until disposition of timely filed motion for rehearing.
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