         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 11, 2001

                     STATE OF TENNESSEE v. JANICE FLOYD

                   Direct Appeal from the Circuit Court for Chester County
                        No. 99-47 and 99-48   Donald H. Allen, Judge



                      No. W2000-02236-CCA-R3-CD - Filed July 20, 2001


The appellant was found not guilty by reason of insanity on two counts of second degree murder
pursuant to Tennessee Code Annotated section 39-13-210, and on one count of aggravated arson
pursuant to Tennessee Code Annotated section 39-14-302. After the court found the appellant not
guilty by reason of insanity, the appellant was committed to Western Mental Health Institute for
diagnosis and evaluation pursuant to Tennessee Code Annotated section 33-7-303. At the
conclusion of the appellant’s diagnosis and evaluation, the doctors conducting the evaluation
determined that the appellant was not committable under the Tennessee Code Annotated and refused
to sign certificates of certification for the appellant to be involuntarily committed. At the end of the
initial sixty (60) day diagnosis and evaluation period, the doctors at Western Mental Health Institute
sought to have the appellant released into a mandatory outpatient treatment program. A hearing was
conducted after the ninety (90) day mandatory release date, and the trial court ordered that the
appellant be returned to Western Mental Health Institute. The appellant brought this appeal asserting
that the trial court erred in ordering her continued detention after the expiration of the maximum
ninety (90) day commitment period, and that such detention violates her rights. The state in its brief
concedes error. After a thorough review of the issue presented in this case, we agree with the
appellant and the state that the trial court erred. This case is remanded to the trial court for further
action consistent with the instruction set forth herein.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                  Reversed and Remanded


JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT
W. WEDEMEYER , JJ., joined.

George Morton Googe, District Public Defender, and Vanessa D. King, Assistant Public Defender,
for the appellant, Janice Floyd.
Paul G. Summers, Attorney General and Reporter; Pamela A. Hayden-Wood, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Shaun Alan Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                            OPINION

         In November 1999, the appellant was indicted on two counts of second degree murder and
on one count of aggravated arson. On January 3, 2000, counsel for the appellant filed a motion
seeking to have the appellant evaluated to determine her competency to stand trial and her mental
condition at the time of the alleged offenses. On February 2, 2000, Pathways Mental Health Facility
notified the trial court that a determination could not be made on an outpatient basis and that a more
extensive evaluation would have to be conducted. On February 15, 2000, the trial court ordered the
appellant to undergo an in-house evaluation at Western Mental Health Institute. On March 24, 2000,
the trial court was notified by Western Mental Health Institute that the appellant was competent to
stand trial and that the appellant’s mental state at the time of the alleged offense supported an
insanity defense.

        On April 27, 2000, the trial court entered an order finding the appellant not guilty by reason
of insanity. The appellant was committed to Western Mental Health Institute pursuant to Tennessee
Code Annotated section 33-7-303(a). On June 19, 2000, Western Mental Health Institute notified
the trial court that appellant did not meet the standards for commitment and recommended
mandatory outpatient treatment. On July 7, 2000, the District Attorney’s office filed a statement
opposing the release of the appellant. On August 17, 2000, a hearing was held and the trial court
denied the appellant’s release.

                                                 Facts

         The appellant, Janice Floyd, age thirty (30), was indicted on two counts of second degree
murder and on one count of aggravated arson in Chester County. On the evening of May 18, 1999,
a fire broke out at a home the appellant shared with her mother, father, and siblings. The appellant’s
mother and brother failed to leave the house when they were warned of the fire and were killed.

         In October 1999, the appellant confided in her sister that she was the one who started the fire.
At the urging of her sister, the appellant confessed the crimes to an investigator. The appellant was
subsequently arrested, indicted, and held in jail for trial. While the appellant was in jail awaiting
trial, arrangements were made for her to go to Pathway Mental Health Facility to be evaluated on an
outpatient basis to determine her competency to stand trial and her mental condition at the time of
the alleged offenses. Pathways Mental Health Facility determined that it could not properly evaluate
her and recommended that she be committed to Western Mental Health Institute on an inpatient basis
to have a proper evaluation conducted.

        During the appellant’s mental evaluation, the appellant explained to staff members at
Western Mental Health Institute that since the age of four (4) she had been sexually abused by her
father and had been hospitalized in a mental health facility on seven (7) prior occasions. The


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appellant was diagnosed with auditory command hallucinations that commanded her to kill herself.
 The appellant also stated that on the evening of the fire her father had sexually abused her, and after
the incident she went outside into the carport where she saw some of her father’s favorite clothes
drying on a rack. The appellant stated that she was hearing voices that were telling her to burn the
clothes. After setting the clothes on fire, the fire spread to the home and engulfed it, killing the
appellant’s mother and brother.

        On March 24, 2000, the trial court was notified by Western Mental Health Institute that the
appellant was competent to stand trial. The trial court was also notified in the same letter that the
appellant’s mental state at the time of the alleged offenses supported an insanity defense. Finally,
the letter from Western Mental Health Institute indicated that the defendant did not meet the
standards for judicial commitment pursuant to Tennessee Code Annotated section§ 33-6-104 and
7-303.

        On April 27, 2000, the matter came before the trial court. The State and the appellant
stipulated that the appellant “did kill Mary Floyd and Billy Floyd during the perpetration of
aggravated arson.” It was further stipulated that the appellant “meets the criteria for the insanity
defense as provided in Tennessee Code Annotated § 39-11-501.” The State recommended that the
appellant should be declared not guilty by reason of insanity. Based upon the report submitted by
doctors at Western Mental Health Institute, the recommendation of the State, and the agreement of
the appellant, the trial court accepted the recommendation of the State and found the appellant “not
guilty by reason of insanity.” This triggered the appellant’s initial period of confinement at Western
Mental Health Institute for the purpose of diagnosis and evaluation pursuant to Tennessee Code
Annotated section 33-7-303.

         On June 19, 2000, after the completion of the diagnosis and evaluation, the trial court was
notified by Western Mental Health Institute that the appellant did not meet the criteria set out by
Tennessee Code Annotated section 33-6-104 for involuntary commitment, and requested that the
trial court order mandatory outpatient treatment. A written, detailed Proposed Outpatient Treatment
Plan was included. The District Attorney’s office did not file any pleadings until July 7, 2000, when
it filed a statement in opposition to the appellant’s release. No certificates certifying the need for
commitment were filed. A hearing was scheduled for July 25, 2000; however, it was rescheduled
for August 17, 2000.

        On July 25, 2000, the trial court was notified by Western Mental Health Institute that the
appellant would be discharged on July 26, 2000, the ninetieth day of her commitment and the date
set for mandatory release by Tennessee Code Annotated section 33-7-303(a). The court entered an
order the same day ordering that the appellant remain in the custody of Western Mental Health
Institute until the rescheduled hearing on August 17, 2000. The appellant remained in the custody
of Western Mental Health Institute until the August 17, 2000, release hearing as ordered.

      The appellant’s release hearing took place as re-scheduled on August 17, 2000. A treating
psychologist from Western Mental Health Institute testified that he did not believe that the appellant


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posed any danger to others, but that if the appellant failed to take her medication she might become
a danger to herself. A treating psychiatrist from Western Mental Health Institute also testified,
stating that the appellant was not committable. The psychiatrist testified that “with [the appellant’s]
current [clear] thinking, she could definitely follow [a mandatory outpatient treatment plan].” At
the conclusion of the hearing, the trial court denied the appellant’s release from Western Mental
Health Institute. The trial court stated as its reason for denial of the appellant’s release that it was
concerned: 1) that there would not be adequate supervision over the appellant; 2) with how the
appellant would get to and from treatment appointments at the outpatient program; 3) that the
appellant would not take her medication as directed; and 4) that the appellant would not be able to
purchase her medication. This appeal followed. The state now concedes that the statutory
requirements for continued commitment were not met.

                                               Analysis

        The issue this court is called upon to address in this appeal is whether the trial court erred in
ordering the appellant’s continued detention after the expiration of the maximum ninety (90) day
commitment period. Jurisdiction to hear the issues brought by the appellant in the instant case is
conferred upon this court by Tennessee Code Annotated section 33-7-303(d). Having jurisdiction
to review the issue presented in this appeal and render a decision in the matter, we must conclude
that the trial court’s continuing detainment of the appellant after the mandatory release date is in
error and is a violation of the appellant’s rights.

A. Governing Law

        We begin our analysis by examining Tennessee Code Annotated section 33-7-303(a), which
states that when a person is charged with a criminal offense and subsequently “acquitted of the
charge on a verdict of not guilty by reason of insanity at the time of the commission of the offense,
the criminal court shall order the person detained for diagnosis and evaluation” in a hospital or
treatment center for a period of at least sixty (60) days, but not longer than ninety (90) days.
Tennessee Code Annotated section 33-6-104(c) continues by stating that “no respondent may be
judicially committed under this statute unless two (2) licensed physicians file in the commitment
proceeding certificates of need for care and treatment certifying that the respondent satisfies the
requirements of subdivisions 1-4 of subsection (b).” Thus, as is plainly clear from both of the above
statutes, the minimum period of time that a court may commit a person who has been acquitted of
a crime on grounds of insanity is sixty (60) days, and the maximum period of time such person may
be judicially committed is ninety (90) days - absent procedural certification of the acquitted by two
licensed physicians who have found that the acquitted falls within the parameters of Tennessee Code
Annotated section 33-6-104(b).

       This court has addressed the issues raised in the instant case in the past. In Brown v. State
C.C.A. No. 14, 1990 WL 40998 (Tenn. Crim. App., filed April 11, 1990, at Jackson), the appellant
was found not guilty by reason of insanity and was committed to a mental health institution for
diagnosis and evaluation pursuant to Tennessee Code Annotated section 33-7-303(a). As with the


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instant case, “the [institution] notified the trial court that the [appellant] did not meet the standards
for involuntary commitment and recommended mandatory outpatient treatment.” An outpatient plan
was submitted to the trial court. The trial court, however, rejected the outpatient plan and ordered
the appellant to be returned to the institution until a plan could be formulated that met with the trial
court’s approval. No certificates of commitment were filed by two licensed physicians as required
by statute. This court ultimately concluded that the detainment of Appellant Brown, when the
“substantive prerequisites [of the Tennessee Code Annotated] were not met,” violated her rights
under the Tennessee Code Annotated. Brown, 1990 WL 40998, at *4-5.

B. Case Analysis

        Turning to the facts in the instant case, testimony was given at the appellant’s release hearing
by treating doctors that the appellant did not meet the requirements under the Tennessee Code
Annotated for involuntary commitment. Further, it is undisputed that the state did not file
certificates by two licensed physicians for the involuntary commitment of the appellant. As in
Brown, it is apparent that the substantive prerequisites for involuntary commitment were not met in
the instant case. The appellant’s statutory rights were violated, as is conceded by the state.

          The trial court makes it manifestly clear that the reason for the continued commitment of the
appellant is due to its concern for the safety of the public and the appellant. The trial court found
such fear in the possibility that the appellant will fail to attend her outpatient treatment program and
fail to take her medication as directed, and thus, reasons that she could become a threat to herself and
society. Testimony, however, does not support this concern. In fact, the psychiatrist testifying on
behalf of the appellant stated that “with [the appellant’s] current [clear] thinking, she could definitely
follow [a mandatory outpatient treatment plan].” This is clear evidence that runs contrary to the trial
court’s concerns about the appellant not taking her medicine as required. We note that the state
offered no proof to rebut the expert medical testimony of the doctors working with the appellant at
Western Mental Health Institute, nor did the state offer any proof to show that the appellant posed
a substantial risk of serious harm to herself or others. In fact, in the record, the state admits that it
was unable to proffer any evidence to support its argument against the release of the appellant.
Indeed, the evidence set forth above, or the lack thereof, fails to support the trial court’s denial of
the appellant’s release into a court ordered outpatient treatment program. Upon this record the
evidence preponderates against the trial court’s findings.

        Prior to concluding this case, we pause to commend the trial court for its concern for the
welfare of society and the appellant. Indeed, we believe that the trial court attempted to act in the
best interest of all involved. However, concerns over the mere possibility of a breakdown in the
mandatory outpatient treatment plan do not topple statutory requirements for involuntary
commitment. Indeed, persons such as the case worker to be assigned to the appellant, the staff at the
appellant’s outpatient treatment program, and Mr. Maness - the individual with whom social services
made living arrangements for the appellant, all serve to ensure the appellant’s compliance with her
outpatient treatment plan.



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         With regards to the proposed living arrangements of the appellant upon release, this court
sees no valid reason to question the living arrangements of the appellant as made by the Department
of Social Services. The only accredited testimony that weighed against the proposed living
arrangement was testimony that Mr. Maness was working out of town. Mr. Maness, however, also
testified that he planned to quit his out of town work after January 2001. With regards to the claims
that there existed a hostile relationship between the appellant and Mr. Maness at one time, the trial
court obviously chose not to accredit such testimony, and this court sees no reason to disturb that
decision.



                                          CONCLUSION

        We sympathize with the state’s and the trial court’s dilemma and concern over safety to the
public. However, Tennessee Code Annotated section§ 33-7-303 and 6-103 expressly set forth the
procedures that must be followed. When properly followed, the proper balance is struck in an
attempt to protect the public, while at the same time protect the ward from unjustified detention.

        Having concluded that the appellant’s statutory rights were violated, this court finds that the
trial court erred by ordering the continued detention of the appellant after the maximum ninety (90)
day period for diagnosis and evaluation. Thus, this matter is remanded to the trial court for an order
of release of the appellant to the outpatient treatment plan. If the state believes the appellant is
committable at some future time, it may file the appropriate documentation required by Tennessee
Code Annotated section 33-6-103. See Brown, 1990 WL 40998, at *4-5 (two judges recommending
any further proceedings must be pursuant to Tennessee Code Annotated section 33-6-103).




                                                       JOHN EVERETT WILLIAMS, JUDGE




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