       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 24, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-0479
                Lower Tribunal Nos. 17-875-A-K & 17-876-A-K
                             ________________


                  Department of Children and Families,
                                    Petitioner,

                                        vs.

                          Adalberto Garcia, et al.,
                                  Respondents.



     A Writ of Certiorari to the Circuit Court for Monroe County, Timothy J.
Koenig, Judge.

      Patricia Salman, Assistant Regional Legal 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 EMAS, FERNANDEZ and LUCK, JJ.

      PER CURIAM.
      The state department of children and families petitions for a writ of

certiorari from the trial court’s order involuntarily committing defendant Adalberto

Garcia to the department after Garcia was found incompetent to proceed with his

pending felony lobster-catching charges. We grant the petition because the trial

court exceeded its jurisdiction by requiring the department to involuntarily commit

Garcia where there was no evidence of a substantial probability that he would

regain competency to proceed in the reasonably foreseeable future, as required for

involuntary commitment under Florida Statutes section 916.13(1)(c).

                   Factual Background and Procedural History

      On August 2, 2017, a Monroe County sheriff’s deputy found the eighty-one

year old Garcia walking with a five pound bucket full of Florida spiny lobsters.

There were twenty-nine lobsters in the bucket caught out of season, with eight of

the lobsters smaller than the minimum allowable size. Garcia was arrested on

felony lobster violations and booked in the Monroe County detention center.

      While still in custody, the trial court ordered that Garcia be evaluated for

competency to stand trial.      Dr. Tanju Mishara conducted the competency

evaluation on November 20, 2017.        Dr. Mishara opined that Garcia was not

competent to stand trial because of his impairment “due to cognitive decline into

dementia which happens to many seniors his age.” Dr. Mishara also believed that

while Garcia met the criteria for involuntary commitment, “it [was] quite doubtful



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that his competency can be restored.” “[I]t is likely,” Dr. Mishara explained, “that

his dementia will progess, and he will experience more cognitive function loss

with time.” “[G]iven his age, treatment [was] not likely to restore his competence

to proceed appreciably.” Dr. Mishara recommended that Garcia be placed in a

senior assisted living facility where he would be supervised for his self-care needs.

      The trial court held a non-testimonial competency hearing on February 26,

2018, where it received Dr. Mishara’s written report as evidence. Based on Dr.

Mishara’s report, the trial court found Garcia incompetent to proceed with the trial

in the case. The trial court also found that Garcia met the criteria for commitment

to a treatment facility as provided in section 916.13(1), and committed Garcia to

the department to be placed in a secure mental health treatment facility. The

sheriff was directed, within fifteen days, to transport Garcia to the treatment

facility designated by the department.

      The department moved for rehearing and reconsideration of the trial court’s

commitment order. In the rehearing motion, the department highlighted the part of

Dr. Mishara’s report where she opined that it was doubtful Garcia’s competency

could be restored. The department also pointed the trial court to the involuntary

commitment statute, section 916.13(1), which provides that the defendant may be

involuntarily committed only on a finding by clear and convincing evidence that

there’s a substantial probability he will respond to treatment and will regain



                                          3
competency to proceed in the reasonably foreseeable future. The department cited

to a case from the Fifth District Court of Appeal, Department of Children &

Families v. Ewell, 949 So. 2d 327 (Fla. 5th DCA 2007), where the appellate court

granted the department’s certiorari petition after the trial court ordered the

defendant involuntarily committed without evidence the defendant could be

restored to competency. The trial court denied the rehearing motion on March 12,

2018.

        The next day, the department served a petition for writ of certiorari. Like

the rehearing motion, the department petitioned to quash the trial court’s

involuntary commitment order because there was no evidence supporting the trial

court’s finding that Garcia met the requirement for involuntary commitment that

there be a substantial probability he will respond to treatment and regain

competency in the near future.

        We ordered Garcia and the Attorney General’s office to respond to the

department’s petition.     Garcia responded that we should grant the certiorari

petition because all competent evidence – i.e., Dr. Mishara’s report – indicated that

Garcia was not restorable, and therefore, he could not be committed to the state

hospital under section 916.13(1). The Attorney General, in her response, agreed:

        DCF asserts that the law prohibits their assuming the care and custody
        of Mr. Garcia. The cited statute, section 916.13, Florida Statutes,
        places into DCF’s care subjects who have a “substantial probability”



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      of responding to treatment for their mental illness. Dr. Tanju T.
      Mishara’s report suggests that Mr. Garcia does not meet that criterion.
            Although DCF is in the best position to assess its
      responsibilities under the regulations, the above-cited statute appears
      to supports its current contention. Hence, the State asks that this
      Court rule accordingly on the question of Mr. Garcia’s placement.

                                     Jurisdiction

      “Certiorari jurisdiction lies to rectify a trial court order to the [d]epartment to

assume treatment responsibilities for an individual beyond what is required by

statute.” Dep’t of Children & Families v. C.Z., 201 So. 3d 78, 81 (Fla. 3d DCA

2015). “Certiorari jurisdiction lies to review DCF’s claim that the trial court has

acted in excess of its jurisdiction by ordering DCF to undertake responsibilities

beyond what is required by statute.” Dep’t of Children & Families v. Amaya, 10

So. 3d 152, 154 (Fla. 4th DCA 2009). Finally, “certiorari does lie where there is

irreparable harm if entities such as . . . HRS, and [the county] are required to pay

for treatment or transportation of the detainee and there is no adequate remedy on

appeal considering the non-party status of these petitioners.” State Dep’t of Health

& Rehab. Servs. v. Myers, 696 So. 2d 863, 865 (Fla. 4th DCA 1997).1

                                      Discussion

      We agree with the department, Garcia, and the Attorney General that the

trial court acted in excess of its jurisdiction when it ordered the department to

1 “The [d]epartment also has standing to being such a petition, despite the fact that
it was not a party to the criminal case or commitment proceeding.” C.Z., 201 So.
3d at 81 n.2.

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involuntarily commit Garcia without evidence of a substantial probability he will

respond to treatment and will likely regain competency. After a defendant is found

incompetent to proceed, he may be involuntarily committed only if the trial court

finds by clear and convincing evidence that the defendant meets the following

criteria:

       (a) The defendant has a mental illness and because of the mental
       illness:

       1. The defendant is manifestly incapable of surviving alone or with
       the help of willing and responsible family or friends, including
       available alternative services, and, without treatment, the defendant is
       likely to suffer from neglect or refuse to care for herself or himself
       and such neglect or refusal poses a real and present threat of
       substantial harm to the defendant’s well-being; or

       2. There is a substantial likelihood that in the near future the
       defendant will inflict serious bodily harm on herself or himself or
       another person, as evidenced by recent behavior causing, attempting,
       or threatening such harm;

       (b) All available, less restrictive treatment alternatives, including
       treatment in community residential facilities or community inpatient
       or outpatient settings, which would offer an opportunity for
       improvement of the defendant's condition have been judged to be
       inappropriate; and

       (c) There is a substantial probability that the mental illness causing the
       defendant’s incompetence will respond to treatment and the defendant
       will regain competency to proceed in the reasonably foreseeable
       future.

§ 916.13(1), Fla. Stat. (2017) (emphasis added).




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      Here, the only evidence the trial court had at the competency hearing was

Dr. Mishara’s report.     Regarding the last involuntary commitment criteria –

whether there was a substantial probability that the defendant’s mental illness

would respond to treatment and the defendant would regain competency in the

foreseeable future – Dr. Mishara diagnosed Garcia with dementia. Dr. Mishara

opined that Garcia’s ability to understand was “impaired due to cognitive decline

into dementia which happens to many seniors his age.” Dr. Mishara believed “[i]t

possible that [Garcia’s] cognitive impairment from dementia [could] benefit

superficially from appropriate treatment, but given his age, treatment [was] not

likely to restore his competency to proceed appreciably.” Dr. Mishara continued

that “it [was] quite doubtful that [Garcia’s] competency can be restored,” and it

was “likely that his dementia will progress, and he will experience more cognitive

function loss with time.” Given Dr. Mishara’s opinion, which was the only one the

trial court had to support its conclusion that Garcia met the criteria for involuntary

hospitalization, the trial court could not have found by clear and convincing

evidence that Garcia’s dementia would respond to treatment and Garcia would

regain competency in the foreseeable future.

      The Fifth District has at least twice granted certiorari petitions from similar

involuntary commitment orders where there was no evidence the defendant would




                                          7
respond to treatment or regain competency. The courts’ opinions are short and

worth quoting in full:

             We grant the Department of Children and Families’ petition for
      writ of certiorari and quash the trial court’s order of continued
      commitment of the respondent, Teresa Ann Gilliland, an individual
      declared mentally incompetent to proceed to trial on two felony
      charges. The uncontradicted medical testimony presented to the trial
      court reveals that Gilliland suffers from dementia that will become
      progressively worse and that there is little or no probability that she
      will become competent in the future. Therefore, Gilliland no longer
      meets the criteria for commitment to the Department under section
      916.13(1)(c), Florida Statutes. § 916.13(1)(c), Fla. Stat. (2006)
      (“Every defendant who is charged with a felony and who is
      adjudicated incompetent to proceed may be involuntarily committed
      for treatment upon a finding by the court of clear and convincing
      evidence that ... [t]here is a substantial probability that the mental
      illness causing the defendant’s incompetence will respond to
      treatment and the defendant will regain competency to proceed in the
      reasonably foreseeable future.”); Dep’t of Children & Families v.
      Wehrwein, 942 So. 2d 947 (Fla. 5th DCA 2006) (granting petition for
      writ of certiorari and quashing lower court's order of commitment to
      Department of Children and Families; holding that although
      respondent was adjudicated incompetent to proceed to trial,
      respondent’s commitment to the Department was improper under
      section 916.13(1)(c) because he suffered from a mental illness that
      was permanent and there was not a substantial likelihood that
      competency would be restored); Andrews v. Johnson, 941 So. 2d 494
      (Fla. 1st DCA 2006) (same); Oren v. Judd, 940 So. 2d 1271 (Fla. 2d
      DCA 2006) (same).

Dep’t of Children & Families v. Gilliland, 947 So. 2d 1262, 1262-63 (Fla. 5th

DCA 2007) (alteration and omission in original).

            Petitioner, the Department of Children and Family Services,
      (“Department”), seeks a writ of certiorari quashing the trial court’s
      order committing Respondent, Shannon Edward Ewell, to the Florida
      State Hospital for treatment to restore him to competency. The only


                                        8
      medical expert who evaluated Ewell opined that Ewell will not be
      able to reach competency through any known therapeutic program.
      Section 916.13(1)(c), Florida Statutes (2006), requires that before a
      defendant is committed to the Department for competency restoration,
      there must be “clear and convincing evidence that ... [t]here is a
      substantial probability that the mental illness causing the defendant's
      incompetence will respond to treatment and the defendant will regain
      competency to proceed in the reasonably foreseeable future.” Because
      there was no evidence presented below to support Ewell’s
      commitment pursuant to section 916.13(1)(c), we find the trial court
      departed from the essential requirements of the law by ordering
      Ewell’s commitment for competency restoration. E.g., M.H. v. State,
      901 So. 2d 197, 200 (Fla. 4th DCA 2005) (recognizing that “[w]here
      competent, substantial evidence does not support the trial court's
      finding regarding competency or involuntary commitment, the trial
      court has departed from the essential requirements of the law”).
      Therefore, we grant the petition, quash the order below, and remand
      this matter to the circuit court for further proceedings.

Ewell, 949 So. 2d at 327-28 (alteration and omission in original).

      We also have uncontradicted evidence from the only medical expert who

evaluated Garcia explaining Garcia’s dementia will get progressively worse, and it

is doubtful Garcia will be restored to competency. As in Gilliland and Ewell, the

trial court exceeded its jurisdiction when it ordered the department to involuntary

commit Garcia after he was found incompetent without evidence that he met the

criteria under section 916.13(1)(c).

                                       Conclusion

      We quash the trial court’s February 26, 2018 order to the extent it committed

Garcia to the department for involuntary hospitalization pursuant to section

916.13(1). We remand this matter to the trial court for further proceedings.2


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FERNANDEZ, J., concurring.

      I wholeheartedly concur and write only to express my concern about the

level of confidence expressed by Dr. Mishara in the results of the Brief

Neuropsychological Cognitive Examination (“BNCE”), a mental status exam, due

to the use of an interpreter to administer the test. The BNCE appears to be the test

that resulted in the diagnosis of dementia. Dr. Mishara wrote in her report:

      To assess mental status BNCE was used. This instrument assesses
      major cognitive functions usually targeted by neuropsychological
      testing. Part 1 relates to more conventional types of information
      processing; and Part 2 subtests are aimed at the processing of novel
      incomplete and less conventional types of information. This latter is
      required for successful information processing of executive functions.
      It tends to decrease earlier and more sharply in those with progressive
      dementia or other assaults to the brain. His total score in the BNCE
      was 5 which placed him in the Severe Impairment category.
      Individuals with scores in this range cannot independently [sic]. His
      Part 2 score was notably lower than Part 1 meaning that his
      information processing functions [sic] was significantly compromised.
      Given his age, dementia adversely affecting the cognitive process was
      likely. It should be pointed out, however, that having to
      administered [sic] the BNCE through an interpreter emphasizes
      that caution be exercised in appraising the accuracy of the results.

(Emphasis added).

2 Those further proceedings could include the state instituting civil commitment
proceedings, releasing Garcia, Gilliland, 947 So. 2d at 1263, or the trial court, on
its own motion, ordering Garcia to be examined by additional experts, Fla. R.
Crim. P. 3.210(b). Because our review is by certiorari, we express no opinion on
what the trial court should do on remand other than to quash the involuntary
commitment part of the trial court’s order.

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