       Third District Court of Appeal
                               State of Florida

                          Opinion filed October 3, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1467
                          Lower Tribunal No. 13-2063
                             ________________


                               K.N., a juvenile,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Maria de Jesus
Santovenia, Judge.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Brian H. Zack, Assistant Attorney
General, for appellee.


Before SUAREZ, LOGUE, and LINDSEY, JJ.

      LOGUE, J.
      K.N., a juvenile, appeals the trial court’s June 14, 2017 Order adjudicating

him delinquent on various grounds for offences he committed at school on May 13,

2013, when he was eleven years old. The court withheld adjudication and placed

K.N. on probation. K.N. contends the trial court lost jurisdiction of this matter

under section 985.19, Florida Statutes. We agree.

      Section 985.19 deals with incompetency in juvenile proceedings. Among

other things, it recognizes that a juvenile may be incompetent to proceed to

adjudication based on “age or immaturity.” § 985.19(2), Fla. Stat. Pertinent to this

case, it also provides for a limitation of the trial court’s jurisdiction when a child

has been determined incompetent.

      Regarding the trial court’s jurisdiction over a child adjudicated incompetent,

the statute provides:

      (5)(a) If a child is determined to be incompetent to proceed, the court
      shall retain jurisdiction of the child for up to 2 years after the date of
      the order of incompetency, with reviews at least every 6 months to
      determine competency.

       ....

      (c) If the court determines at any time that the child will never become
      competent to proceed, the court may dismiss the delinquency petition.
      If, at the end of the 2-year period following the date of the order of
      incompetency, the child has not attained competency and there is no
      evidence that the child will attain competency within a year, the court
      must dismiss the delinquency petition. If appropriate, the court may
      order that proceedings under chapter 393 or chapter 394 be instituted.


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      Such proceedings must be instituted not less than 60 days prior to the
      dismissal of the delinquency petition.

§ 985.19(5), Fla. Stat. (emphasis added).

      Before the trial in this matter, upon motion of the defense, the trial court

appointed two experts to examine K.N. to determine if he lacked competence to

proceed to adjudication due to “age or immaturity”. See § 985.19(2), Fla. Stat.

Both court-appointed experts opined that K.N. was incompetent. On September 6,

2013, the court adjudicated K.N. incompetent to proceed to trial.

      As required by the statute, K.N. was re-evaluated every six months

thereafter; the experts opined that K.N. remained incompetent; and the court

adjudicated him incompetent. On November 14, 2016, however, more than three

years after the trial court first adjudicated K.N. incompetent, the trial court

adjudicated K.N. competent. The matter proceeded to a final hearing and the trial

court adjudicated K.N. as described above. K.N. timely appealed.

      K.N. argues that the trial court lost jurisdiction over him on or around

September 7, 2015, which was the two-year mark from the date that K.N. was

originally adjudicated incompetent. In so arguing, K.N. first notes that the statute

provides “the court shall retain jurisdiction of the child for up to 2 years after the

date of the order of incompetency.” § 985.19(5)(a), Fla. Stat. But K.N. observes

that jurisdiction in this case is ultimately controlled by the second sentence of



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section 985.19(5)(c) (emphasis added) which provides if “at the end of the 2-year

period following the date of the order of incompetency, the child has not attained

competency and there is no evidence that the child will attain competency within a

year, the court must dismiss the delinquency petition.” Here, K.N. asserts, there

was no evidence “at the end of the 2-year period” that the child would “attain

competency within a year” and therefore “the court must dismiss.”1

      The State makes two responses. First, it contends that at the two-year mark,

there was evidence that the child would obtain competency. This evidence was

purportedly contained in the September 18, 2015 Report of Dr. Jose J. Dergan,

who, while concluding K.N. was “not competent to proceed [to trial] at this time,”

also opined that K.N. was “still in need for weekly counseling, in order to learn

appropriate behavioral and cognitive management to avoid social wrongful

behavior.” The opinion that K.N. is still in need of counseling, however, falls far

short of stating K.N. will become competent to go to trial at any time, much less

within a year.

      Second, the State argues that the statute requires affirmative evidence at the

two-year mark that the child will not attain competency in the next year. But this

argument runs contrary to the plain text of the statute which directs that “the court


1 We do not reach K.N.’s alternative argument that section 985.19(5) creates an
absolute bar of the trial court continuing jurisdiction after three years under any
circumstances.

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must dismiss the delinquency petition” if “there is no evidence that the child will

attain competency within a year.” § 985.19(5)(c), Fla. Stat. Here there was no such

evidence and therefore the trial court lost jurisdiction and should have dismissed

the case. Contrary to the State’s argument, we do not see any conflict between this

conclusion and State v. J.L.M., III, 926 So. 2d 457, 461 (Fla. 1st DCA 2006)

(holding the trial court had to retain jurisdiction for two years where neither of the

two experts opined that the child would never become competent).

      Reversed.




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