          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-1927
                  _____________________________

COLUMBUS WILLIAMS,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                   ___________________________

Petition for Writ of Certiorari—Original Jurisdiction.

                          October 2, 2018

PER CURIAM.

     Following his arrest, Columbus Williams filed a motion for
discharge and termination of jurisdiction for incompetency and
non-restorability, asserting that the intellectual disability
underlying his incompetency was static and that he could not be
held on charges without any likelihood of becoming competent to
stand trial. After a hearing, the trial court denied the motion,
finding a substantial probability that Williams would regain
competency in the reasonably foreseeable future. Williams sought
this Court’s review by filing a petition for writ of certiorari, which
we now grant because the trial court’s findings are not supported
by competent, substantial evidence.

                                    I.

    Williams was first charged in 2002, was soon found
incompetent due to an intellectual disability, and was admitted to
a forensic facility that provides competency training. In 2007, the
trial court dismissed the charge, finding that Williams was still
incompetent after almost five years of training and that there
was “no reason to believe” he would become competent to stand
trial in the reasonably foreseeable future. Williams was
involuntarily committed. Orders continuing Williams’ civil
commitment were entered in 2009, 2012, 2013, 2014, and 2015,
all citing the seriousness of his intellectual disability.

     Williams was charged with another crime in 2016. Dr.
Salvatore Blandino was then ordered to examine Williams’
competency, and did so after reviewing limited and miscellaneous
records. Dr. Blandino noted Williams’ mental health diagnoses,
including illnesses and intellectual developmental disorder,
observed that he was “obviously cognitively impaired” during the
examination, and found him incompetent. However, Dr. Blandino
also stressed that Williams was overmedicated by an excessive
regimen of psychotropic medications, which likely contributed to
his poor performance during the examination. Dr. Blandino’s
report concluded that contingent upon the stabilization of
Williams’ medications and competency training, his prognosis
was “guarded to fair” and a determination as to his likelihood of
attaining competency would be possible in six to twelve months.

     By the time the competency hearing commenced, Dr.
Blandino had reviewed additional records regarding Williams’
developmental services and competency, including those deeming
him non-restorable due to an intellectual disability years prior.
Testifying for the State, Dr. Blandino explained that intellectual
developmental disorder is a static condition that could not
improve, and the fact that Williams was declared non-restorable
based on this disorder, rather than any mental illnesses, meant
that he would never attain competency. He further noted that his
prior “guarded to fair” prognosis was based on the chance that
Williams’ incompetency was partially due to overmedication, but
based on the information later learned, he understands no chance
of attaining competency now exists regardless of which
medications Williams takes. The only other evidence presented
by the State was the testimony of Dr. Amanda Graham, who
agreed that Williams had an intellectual disability, and who had
seen no indication that he had attained competency since 2002.

                                2
     The trial court held that Williams was incompetent, but
denied his motion to discharge, declined to dismiss the charges,
and ordered him to commence competency training. The trial
court did not find “any evidence” that Williams’ competency
would not be restored because “people’s conditions change,”
referenced Dr. Blandino’s prior “guarded to fair” prognosis, and
concluded that clear and convincing evidence showed that
Williams had a substantial likelihood of regaining competency in
the reasonably foreseeable future.

                               II.

     An incompetent person charged with a crime may only be
held for the “time necessary to determine whether there is a
substantial probability” that he or she may attain competency to
proceed to trial. Jackson v. Indiana, 406 U.S. 715, 738 (1972).
Appellate courts may review the trial court’s application of these
due process rights by common law certiorari and for competent,
substantial evidence. See Vasquez v. State, 496 So. 2d 818, 820
(Fla. 1986).

     A defendant found incompetent due to an intellectual
disability or autism may only be involuntarily committed for
competency training if, inter alia, there exists “a substantial
probability that the intellectual disability or autism causing the
defendant’s incompetence will respond to training and the
defendant will regain competency to proceed in the reasonably
foreseeable future.” § 916.302(1)(d), Fla. Stat. The trial court
made the findings necessary to satisfy the statutory
requirements, but competent, substantial evidence does not
support them.

     The only evidence the trial court cited in announcing its
ruling was Dr. Blandino’s report. It was error to interpret this
report as supporting the conclusion that there exists a
substantial likelihood of Williams attaining competency. Dr.
Blandino’s report found that Williams was mentally disabled, his
disability was enhanced by the medications he was taking, and
that a determination as to his likelihood of attaining competency
could only be made when his medications were stabilized; Dr.

                                3
Blandino concluded that he could not make a determination for
six to twelve months. Upon receiving additional information of
Williams’ medical and legal history, Dr. Blandino was able to
then determine that Williams would never attain competency to
stand trial. In light of this testimony, the non-determination
made in Dr. Blandino’s prior report does not constitute
competent, substantial evidence to support the trial court’s
finding of a substantial probability that Williams’ intellectual
disability would soon improve and enable him to attain
competency. * Because Williams does not meet the criteria to be
involuntarily committed pursuant to section 916.302, “the State
must either institute civil commitment proceedings or release”
him. Mosher v. State, 876 So. 2d 1230, 1232 (Fla. 1st DCA 2004)
(footnote omitted).

     Lastly, we reject the State’s argument that Williams is not
entitled to dismissal of his charges because the two-year limit
under section 916.303(1), Florida Statutes, has yet to expire.
Section 916.303(1) mandates dismissal “within a reasonable
time” after a determination of incompetency, “not to exceed 2
years,” unless the trial court specifies reasons indicating that the
defendant will soon become competent. The reasonableness of
time is in consideration of the prospects of restoring the
defendant’s competency. “Thus, a reasonable time has passed,
and the defendant’s substantive right to dismissal of the criminal
charge arises, when it becomes evident that the defendant cannot
be restored to competency.” Gonzalez v. State, 15 So. 3d 37, 40
(Fla. 2d DCA 2009); see also Roddenberry v. State, 898 So. 2d
1070, 1073 (Fla. 5th DCA 2005); cf. § 916.145, Fla. Stat.

    * We note that Dr. Blandino’s report was based on a limited
review of Williams’ medical history, while he testified at the
hearing after he had a more complete understanding of Williams’
history. It is unnecessary to determine whether such a report
could constitute sufficient evidence to support a holding in some
situations—see M.A.B. v. Dep’t of Health & Rehab. Servs., 630 So.
2d 1252, 1255 (Fla. 1st DCA 1994) (“An expert’s opinion which is
based upon incomplete or inaccurate facts cannot be competent
substantial evidence.”)—because here, the report’s conclusion
does not support the trial court’s finding.

                                 4
(requiring dismissal for those incompetent due to mental
illnesses “if the defendant remains incompetent for 5 continuous,
uninterrupted years”).

                                    III.

     Williams was declared incompetent in 2002 based on his
intellectual developmental disorder and, in 2007, his continued
incompetency resulted in the dismissal of his charges and civil
commitment. Following his 2016 arrest, Williams was again
found incompetent, with no indication that he had attained
competency since 2002. At a hearing, the State’s evidence
demonstrated that Williams’ disorder would never improve and
he would never attain competency. It was error to find a
substantial probability that Williams would attain competency in
the reasonably foreseeable future based on a report making no
such determination, particularly in the face of direct evidence to
the contrary. Williams must be civilly committed or released, and
his charges dismissed.

    Therefore, we GRANT Williams’ petition for writ of certiorari
and QUASH the trial court’s order.

RAY, BILBREY, and WINOKUR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Andy Thomas, Public Defender, and Marcia Perlin, Assistant
Public Defender, Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General, and Holly Simcox, Assistant
Attorney General, Tallahassee, for Respondent.




                                5
