               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                                 IN THE DISTRICT COURT OF APPEAL

                                                 OF FLORIDA

                                                 SECOND DISTRICT


DEPARTMENT OF CHILDREN AND                       )
FAMILIES,                                        )
                                                 )
              Petitioner,                        )
                                                 )
v.                                               )      Case No. 2D14-2020
                                                 )
WILLIAM CARMONA and STATE OF                     )
FLORIDA,                                         )
                                                 )
              Respondents.                       )
                                                 )

Opinion filed January 30, 2015.

Petition for Writ of Certiorari to the Circuit
Court for Pasco County; Mary M. Handsel,
Judge.

Deanne Fields, Assistant General Counsel,
Department of Children and Families,
Tampa, for Petitioner.

Gage Neibergall, Assistant Public
Defender, New Port Richey, for
Respondent Carmona.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Alex B.C. Ershock,
Assistant Attorney General, Tampa, for
Respondent State of Florida.
DAVIS, Chief Judge.

             The Department of Children and Families seeks to quash by writ of

certiorari the trial court's order adjudicating William Carmona incompetent to proceed to

trial on a felony charge and ordering the Department to pay the costs of Mr. Carmona's

placement in a healthcare facility. We grant the petition in part and quash the order to

the extent that Mr. Carmona was committed to the Department to be treated at the

Department's expense.

             William Carmona was charged with felony petit theft. Prior to trial, he was

examined by two mental health experts who both opined that he was incompetent to

proceed to trial. Both of the experts also agreed that it was improbable that Mr.

Carmona could be restored to competency. Based on the opinions of the two experts,

the trial court found Mr. Carmona incompetent to proceed to trial due to a mental illness

as defined in section 916.106(11), Florida Statutes (2013). In that same order, the trial

court directed that Mr. Carmona be "provided placement and treatment" by the

Department during a period of "conditional release." The trial court set a hearing for

April 4, 2014, for the purpose of receiving from the Department a written report "on the

issue of placement and treatment for restoration of competency to proceed."

             Following that hearing, the trial court entered its "Order of Conditional

Release and Temporary Placement of Defendant Previously Adjudged Incompetent to

Proceed Pursuant to § 916.17 Fla. Stat." Included in that order was the finding that Mr.

Carmona "does not meet the criteria for commitment to a treatment facility of the

Department of Children and Families as provided in section 916.13(1)." However, the

order did find that Mr. Carmona needed "case managed treatment to restore




                                           -2-
competency to proceed." Accordingly, the trial court ordered that Mr. Carmona be

transported from the Pasco County Jail to Windmoor Hospital, where he was to remain

until a bed was available at BayCare Behavioral Health facility. Further, the order

required the Department to assume the costs of Mr. Carmona's care at these facilities

and stated that this was to be considered a release pursuant to section 916.17, the

conditional release statute. It is this order that the Department now asks this court to

quash.

              We have certiorari jurisdiction to review the trial court's order, which the

Department alleges was entered in excess of the trial court's jurisdiction. See Dep't of

Children & Family Servs. v. Amaya, 10 So. 3d 152, 154 (Fla. 4th DCA 2009) ("Certiorari

jurisdiction lies to review [the Department's] claim that the trial court has acted in excess

of its jurisdiction by ordering [the Department] to undertake responsibilities beyond what

is required by statute."); see also Dep't of Children & Families v. Harter, 861 So. 2d

1274, 1275 (Fla. 5th DCA 2003) ("Although the Department was not a party to the

criminal case or commitment proceeding, it has standing to seek certiorari review of the

circuit court order because it is affected by the order and no other remedy is available.").

"[T]o obtain a writ of certiorari, there must exist (1) a departure from the essential

requirements of the law, (2) resulting in material injury for the remainder of the case (3)

that cannot be corrected on postjudgment appeal." In re Commitment of Reilly, 970 So.

2d 453, 455 (Fla. 2d DCA 2007) (alteration in original) (quoting Reeves v. Fleetwood

Homes of Fla., Inc., 899 So. 2d 812, 822 (Fla. 2004)) (internal quotation marks omitted).

Because we conclude that the trial court here did depart from the essential

requirements of law and that such departure resulted in a material injury that cannot be




                                            -3-
corrected on appeal, we grant the petition for the writ of certiorari and quash the April

20, 2014, order of the trial court to the extent that it orders the commitment of Mr.

Carmona to the Department.

              Section 916.106(11) clearly defines when a person is incompetent to

proceed in a criminal proceeding.1 In the instant case, the reports of the experts who

examined Mr. Carmona clearly support the trial court's conclusion that in fact Mr.

Carmona is incompetent to proceed. Accordingly, the trial court did not depart from the

essential requirements of law in determining that Mr. Carmona is incompetent to

proceed to trial.

              However, section 916.13 sets the criteria that must be established before

the trial court has the authority to involuntarily commit an individual for treatment. If an

individual is found to have met these criteria and is thereby subject to being committed

to the Department for treatment, section 916.17 provides an alternative to the residential

commitment known as a "conditional release." In its April 20, 2014, order, the trial court

specifically found that Mr. Carmona "does not meet the criteria for commitment to a

treatment facility of the Department of Children and Families as provided in [section]

916.13." And "an incompetent defendant may not be committed to [the Department] if

the statutory criteria are not met." Amaya, 10 So. 3d at 156. We agree with the Fourth

District's conclusion that "[t]he conditional release provisions of the statute and the rules



              1
               " 'Incompetent to proceed' means unable to proceed at any material
stage of a criminal proceeding, which includes the trial of the case, pretrial hearings
involving questions of fact on which the defendant might be expected to testify, entry of
a plea, proceedings for violation of probation or violation of community control,
sentencing, and hearings on issues regarding a defendant's failure to comply with court
orders or conditions or other matters in which the mental competence of the defendant
is necessary for a just resolution of the issues being considered." § 916.106(11).


                                            -4-
implementing the statute indicate that conditional release under section 916.17 is

appropriate only when a defendant meets the criteria for commitment to [the

Department]." See id.

              Here, after finding that Mr. Carmona does not meet the statutory

requirements for involuntary commitment as prescribed in section 916.13, the trial court

ordered the Department to place Mr. Carmona in a specified facility (BayCare

Behavioral Center) at the Department's expense. This was a departure from the

essential requirements of law, and the portion of the order requiring this placement must

be quashed.

              The petition for writ of certiorari is granted in part, and the trial court's

order of April 4, 2014, is quashed to the extent that it purports to commit Mr. Carmona

to the Department and requires placement by the Department.

              Granted in part and denied in part.



NORTHCUTT and CASANUEVA, JJ., Concur.




                                             -5-
