Department of Children and Fam. v. Wmj , 849 So. 2d 1147 ( 2003 )

849 So.2d 1147 (2003)

DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner,
v.
W.M.J., A Child, Respondent.

No. 5D03-1229.

District Court of Appeal of Florida, Fifth District.

July 18, 2003.

Ralph J. McMurphy, Department of Children and Families, Wildwood, for Petitioner.

Brad King, State Attorney, and Linda Johns Herrick, Assistant State Attorney, Ocala, for the State of Florida.

No Appearance for Respondent W.M.J., a Child.

SHARP, W., J.

The petitioner, Department of Children and Families, seeks a writ of certiorari to review the order of the trial court which committed an incompetent juvenile to the Department for competency restoration, in a case in which the juvenile's alleged delinquent act would constitute a misdemeanor if committed by an adult. The trial court's order provides:

The child is committed to the Department of Children and Families for assistance and supervision with the goal of the restoration of the child's competency to proceed.

The trial court rendering this decision may not have had the benefit of our opinion in Department of Children and Families v. E.M.S., 841 So.2d 621 (Fla. 5th DCA 2003). This case is indistinguishable from E.M.S. and Department of Children and Families v. J.K., 752 So.2d 87 (Fla. 1st DCA 2000). Under the applicable statute, section 985.223(2), Florida Statutes, an incompetent juvenile charged with the equivalent of a misdemeanor offense may not be committed to the Department for restoration of competency treatment or training services.

Accordingly, we grant the Department's petition for writ of certiorari, quash the order under review, and remand for further proceedings.

GRANT Petition for Writ of Certiorari and remand; QUASH Order.

PETERSON and MONACO, JJ., concur.