State v. Carey , 2017 Fla. App. LEXIS 209 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed January 11, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1003
Lower Tribunal No. 12-20525
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The State of Florida,
Appellant,
vs.
Christine Carey,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Miguel de la O,
Judge.
Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellant.
Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant
Public Defender, for appellee.
Before WELLS, LAGOA and SALTER, JJ.
WELLS, Judge.
The State appeals from an order terminating jurisdiction, discharging
Appellee and dismissing the pending criminal case against Appellee, on a finding
that Appellee could not be restored to competency and that further review by the
court would be futile. We agree with the State that Florida Rule of Criminal
Procedure 3.213(a)(1) precludes dismissal of the criminal case at this time and for
that reason reverse in part the order under review.
The underlying facts are relatively undisputed. Appellee is an elderly
woman who suffers from advancing dementia which is irreversible. The charges
against her stem from an aggravated battery on a pregnant woman.
Over a period of three years, Appellee has been evaluated by a number of
experts all of whom agree she will never be restored to competency. The State
does not disagree with these determinations and no determination of competency
restoration has been ordered by the court. In fact, Appellee was conditionally
released in 2013 to her family which continues to care for her and to do everything
possible to protect others from her.
Essentially concluding that Appellee’s physical condition, as well as her
mental status, makes Appellee no threat to the public and that continued court
supervision would be futile and a waste of judicial resources, the court below
terminated further court ordered supervision or care and then dismissed the
criminal action against her.
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While the State does not take issue with the former determination it claims
that the court below erred in determining that a lack of restorability to competency
supports dismissal of the criminal action. We agree.
Rule 3.213(a)(1) generally provides that charges “shall” be dismissed
against an individual charged with a felony who remains incompetent for five
years; who does not meet the criteria for commitment; and, who has “no
substantial probability” of having competency restored:
(a) Dismissal without Prejudice during Continuing
Incompetency.
(1) If at any time after 5 years following a determination that a person
is incompetent to stand trial or proceed with a probation or
community control violation hearing when charged with a felony, or 1
year when charged with a misdemeanor, the court, after hearing,
determines that the defendant remains incompetent to stand trial or
proceed with a probation or community control violation hearing, that
there is no substantial probability that the defendant will become
mentally competent to stand trial or proceed with a probation or
community control violation hearing in the foreseeable future, and
that the defendant does not meet the criteria for commitment, it shall
dismiss the charges against the defendant without prejudice to the
state to refile the charges should the defendant be declared competent
to proceed in the future.
(Emphasis added).
Section 916.145 of the Florida Statutes similarly provides for dismissal of
charges where a defendant has remained continuously incompetent for five
uninterrupted years with no return to competency foreseeable:
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(1) The charges against a defendant adjudicated incompetent to
proceed due to mental illness shall be dismissed without prejudice to
the state if the defendant remains incompetent to proceed for 5
continuous, uninterrupted years after such determination, unless the
court in its order specifies its reasons for believing that the defendant
will become competent to proceed within the foreseeable future and
specifies the time within which the defendant is expected to become
competent to proceed. The court may dismiss such charges at least 3
years after such determination, unless the charge is:
...
(n) Aggravated battery[.]
§ 916.145(1)(n), Fla. Stat. (2015).
Both Rule 3.213(a)(1) and section 916.145(1)(n), leave no doubt that the
court below, while free to terminate supervised follow up care, was not authorized
to dismiss the charges pending against Appellee as fewer than five years had
elapsed between the time Appellee was adjudicated incompetent and the dismissal
order.
In reaching this conclusion we necessarily reject Appellee’s argument that
section 916.17 of the Florida Statutes conferred discretion on the court below to
dismiss the charges against Appellee in less than five years. That provision,
authorizes conditional release in lieu of involuntary commitment either before an
adjudication of guilt or after an acquittal on a finding of not guilty by reason of
insanity. Section 916.17 expressly authorizes release in either circumstance when
predicated on a court approved treatment plan encompassing, among other things,
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periodic follow up reports to the court regarding a defendant’s compliance and
treatment progress:
(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. Upon a recommendation that outpatient
treatment of the defendant is appropriate, a written plan for outpatient
treatment, including recommendations from qualified professionals,
must be filed with the court
....
In its order of conditional release, the court shall specify the
conditions of release based upon the release plan and shall direct the
appropriate agencies or persons to submit periodic reports to the court
regarding the defendant’s compliance with the conditions of the
release and progress in treatment
....
(3) If at any time it is determined after a hearing that the defendant
who has been conditionally released under subsection (1) no longer
requires court-supervised follow up care, the court shall terminate its
jurisdiction in the cause and discharge the defendant.
§ 916.17(1), (3), Fla. Stat. (2015) (emphasis added).
While this provision does state that when a trial court has determined that a
defendant on conditional release no longer requires follow up care, jurisdiction will
be terminated and the defendant discharged, to be consistent with section 916.145,
this provision must be read to apply only to the court’s continuing jurisdiction to
enforce a conditional release plan and its authority to discharge a defendant from
the obligation to further comply with the plan. See Forsythe v. Longboat Key
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Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992) (“Where possible,
courts must give full effect to all statutory provisions and construe related statutory
provisions in harmony with one another.”).1 Section 916.17 should not be read as
invalidating the five year before dismissal requirement of section 916.145.
In sum, while the court below was authorized to “discharge” Appellee from
her responsibility to further comply with the obligation to report to the court under
her conditional release plan, and to “terminate its jurisdiction” to enforce that plan,
it was not authorized to dismiss the charges against Appellee, because five years
had not elapsed since she was determined incompetent to proceed. See Mosher v.
State, 876 So. 2d 1230, 1232 (Fla. 1st DCA 2004) (“The trial court correctly ruled
that Fla. R.Crim. P. 3.213 and section 916.145, by their plain language, relate to
the dismissal of charges at any time after five years have elapsed from the time the
person is determined incompetent to proceed. Because the five-year period of time
has not yet passed, we find no error in the trial court’s ruling that the charges
against Mosher should not yet be dismissed pursuant to Fla. R. Crim. P. 3.213 and
1 The State supports the five year requirement in part by pointing to Florida Rule
of Criminal Procedure 3.213(a)(2), as an instance where a shorter period before
dismissal was provided, wording missing from Rule 3.213(a)(1):
(2) If the incompetency to stand trial or to proceed is due to
intellectual disability or autism, the court shall dismiss the charges
within a reasonable time after such determination, not to exceed 2
years for felony charges and 1 year for misdemeanor charges, unless
the court specifies in its order the reasons for believing that the
defendant will become competent within the foreseeable future . . . .
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section 916.145.”); see also State v. Benninghoff, 188 So. 3d 64, 67 (Fla. 4th DCA
2016) (“Cases reviewing the dismissal of charges, pursuant to section 916.145,
Florida Statutes, and rule 3.213 of the Florida Rules of Criminal Procedure have
uniformly and consistently enforced the five-year requirement before dismissal.
See Bryant v. State, 99 So. 3d 612, 613 (Fla. 5th DCA 2012) (affirming denial of
motion to dismiss because five years had not elapsed); Tiburcio v. State, 95 So. 3d
1037 (Fla. 5th DCA 2012) (reversing dismissal of charges because five years had
not elapsed). Mosher v. State, 876 So. 2d 1230, 1232 (Fla. 1st DCA 2004)
(affirming denial of motion to dismiss prior to expiration of five years). Here, less
than four years elapsed before the trial court dismissed the charge against the
defendant. Based on a plain reading of rule 3.213, section 916.145, and case law,
the trial court erred in dismissing the charge.”); accord McCray v. State, 200 So.
3d 1296, 1297 (Fla. 2d DCA 2016) (“To the extent the petition seeks relief from
that portion of the trial court’s order denying dismissal of the information, it is
denied based on a failure to show a departure from the essential requirements of
law because fewer than five years have elapsed since the original determination
that Mr. McCray was incompetent to proceed due to mental illness.”).
Accordingly, with only two years from Appellee’s March 2013
determination of incompetency to the April 2015 order under review, the trial
judge erred in dismissing the criminal charge against Appellee. In accordance with
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the analysis above, that portion of the order on appeal terminating further follow
up review by the trial court is affirmed; that portion of the order dismissing the
charges against Appellee is reversed and remanded.
Affirmed in part, reversed in part.
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