       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT
                             July Term 2014

                         KENDRICK JOSEPH,
                             Petitioner,

                                   v.

                         STATE OF FLORIDA,
                            Respondent.

                            No. 4D14-2678

                          [December 3, 2014]

   Petition for writ of certiorari to the Seventeenth Judicial Circuit,
Broward County; Ari Abraham Porth, Judge; L.T. Case Nos. 13-
5141CF10A, 13-5142CF10A, 13-5788CF10A, 13-5789CF10A and 13-
5790CF10A.

   Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief
Assistant Public Defender, Fort Lauderdale, for petitioner.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for respondent.

GROSS, J.

  Kendrick Joseph petitions for a writ of certiorari to quash June 19,
2014 orders denying his motion to dismiss in five pending felony cases.
He contends that he is entitled to dismissals pursuant to section
916.303(1), Florida Statutes (2013), which provides:

     The charges against any defendant found to be incompetent
     to proceed due to intellectual disability or autism shall be
     dismissed without prejudice to the state if the defendant
     remains incompetent to proceed within a reasonable time
     after such determination, not to exceed 2 years, unless the
     court in its order specifies its reasons for believing that the
     defendant will become competent to proceed within the
     foreseeable future and specifies the time within which the
     defendant is expected to become competent to proceed. The
      charges may be refiled by the state if the defendant is declared
      competent to proceed in the future.

(Emphasis added). Section 916.106(13) defines “intellectual disability” as
having “the same meaning as in s. 393.063.” Section 393.063(21) defines
“intellectual disability” as follows:

      (21) “Intellectual disability” means significantly subaverage
      general intellectual functioning existing concurrently with
      deficits in adaptive behavior which manifests before the age of
      18 and can reasonably be expected to continue indefinitely.
      For the purposes of this definition, the term:

            (a) “Adaptive behavior” means the effectiveness
                or degree with which an individual meets the
                standards of personal independence and
                social responsibility expected of his or her
                age, cultural group, and community.

            (b) “Significantly subaverage general intellectual
                functioning” means performance that is two
                or more standard deviations from the mean
                score on a standardized intelligence test
                specified in the rules of the agency.

      For purposes of the application of the criminal laws and
      procedural rules of this state to matters relating to pretrial,
      trial, sentencing, and any matters relating to the imposition
      and execution of the death penalty, the terms “intellectual
      disability” or “intellectually disabled” are interchangeable with
      and have the same meaning as the terms “mental retardation”
      or “retardation” and “mentally retarded” as defined in this
      section before July 1, 2013.

   None of the evaluations of the defendant have ever found Joseph to
have met the statutory definition of “intellectual disability.” Some recent
evaluations found that Joseph suffered from a mental illness; however, the
statutory definition of “mental illness” “does not apply to defendants who
have only an intellectual disability.” § 916.106(14), Fla. Stat. (2013).
Section 916.145, Florida Statutes (2013), provides for the dismissal of
charges after five years where incompetency is due to mental illness.

   Joseph has not demonstrated that he is statutorily entitled to
dismissals at this time. The petition for writ of certiorari is denied.

                                    -2-
MAY, J., concurs.
WARNER, J., concurs specially with opinion.

WARNER, J., concurring specially.

   Since 2009 appellant has been evaluated nearly every six months to
determine whether he was competent to proceed with juvenile and now
adult charges. I count thirteen evaluations. Each time, save one (in 2011),
he was determined not to be competent. Almost all of the examiners found
that he had significant developmental and learning disabilities. None
diagnosed him with a mental illness, although a couple of the reports opine
that he might have a psychotic disorder. Several others said that he did
not have a mental illness. Some reports suggested ruling out retardation.
Others did not mention it. Most likely, the reason that the reports don’t
use the magic words “intellectual disability” is because these don’t appear
in the statute until 2013, when an amendment changed “mental
retardation or autism” to “intellectual disability or autism” in section
916.303(1), Florida Statutes (2013).

   No testing was done of any significance to determine his intellectual
capacity until 2014. Almost all of the reports suggest treatment, including
residential treatment, to restore competency, but either the state has not
provided it or it has been unsuccessful. I note that in 2009 the evaluators
thought that with educational and behavioral training the chances of
competency restoration were good, but more recent reports state that his
prognosis to be restored to competency is “guarded.”

    I do not pretend to understand the diagnoses in the psychological
reports sufficiently to determine whether the learning disabilities would
constitute “mental retardation” under the prior statute or “intellectual
disability” under the present statute. Therefore, I cannot disagree with the
conclusion of the majority opinion that the record does not support the
statutory requirements for dismissal of the charges. If, however, the
appellant can show through the testimony or affidavits of the prior
evaluators that their reports meant that he was intellectually disabled
within the meaning of the statute, then he should be able to move again
for dismissal of the charges.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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