          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                      CYNTHIA J. BENNINGHOFF,
                              Appellee.

                              No. 4D15-325

                            [March 23, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Geoffrey Cohen, Judge; L.T. Case No. 11-9463CF10A.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellant.

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellee.

MAY, J.

   The State appeals an order dismissing a charge against the defendant
without prejudice. The State argues the trial court erred in dismissing the
charge prior to the expiration of five years from the time the court
adjudicated the defendant incompetent, as required by Florida Rule of
Criminal Procedure 3.213(a)(1). We agree and reverse.

RELEVANT DATES

   June 28, 2011            State charges the defendant.

   September 22, 2011       Trial court finds the defendant incompetent,
                            but does not meet involuntary hospitalization
                            criteria.

   November 18, 2011        The defendant is placed on conditional release
                            and ordered to attend community-based
                            treatment for mental illness and competency
                            restoration   training    based     on     the
                            recommendations of two doctors.

   January 11, 2012         Court orders the defendant to receive
                            additional competency restoration training.

   April 12, 2013           Doctor appointed to re-evaluate the defendant
                            for competency.

   December 15, 2014        Court orders an additional evaluation.

   January 13, 2015         The defendant moves to dismiss, pursuant to
                            rule 3.213(b) and Jackson v. Indiana, 406 U.S.
                            715 (1972).

THE HEARING AND ORDER

   At the hearing on the defendant’s motion to dismiss, defense counsel
argued that the defendant has continuously received competency
restoration services while on conditional release, and a doctor who
evaluated her found she is not benefiting from the services and remains
incompetent to proceed. Counsel also argued that the victim does not
want to prosecute because she is the defendant’s biological sister, they
currently have an amicable relationship, and are in contact with each
other.

   The State objected because rule 3.213 provides for five years for
restoration before the court can dismiss the case. The State also argued
the defendant was a habitual felony offender and prison releasee
reoffender. The State did not agree to the dismissal.

   Defense counsel highlighted the steps taken by the defendant to restore
competency were without success. Counsel also advised the trial court
that the defendant’s only violations while on conditional release were
positive drug screens. The court then found:

      I appreciate that the law allows me to allow an individual who
      is not competent to remain on conditional release for up to five
      years. No doubt in my mind that [the defendant] is a chronic
      substance abuser. She’s been incarcerated on multiple
      grounds for that during her conditional release. But I also like
      Dr. Simonds’ findings that there is no likelihood of her being
      restored to competency. She’s been on conditional release for
      three and a half years, going to competency restoration
      classes and apparently hasn’t made any substantial progress

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       during that period of time. The motion to dismiss is granted.

    The trial court entered the following order:

       It is hereby ordered that the charge against the above-named
       [d]efendant shall be dismissed pursuant to Florida Rule
       3.213(b). The charges are dismissed without prejudice. The
       [d]efendant was found not competent to proceed on 9/22/11.
       The [d]efendant has been on conditional release since that
       time, receiving competency restoration services and according
       to Dr. Simonds[’] evaluation on 1/5/15, there is no indication
       that the [d]efendant will become competent in the foreseeable
       future.

(Emphasis in original). From that order, the State now appeals.

THE APPEAL

  We have de novo review. Knipp v. State, 67 So. 3d 376, 378 (Fla. 4th
DCA 2011).

   The defendant moved to dismiss her charge pursuant to Florida Rule
of Criminal Procedure 3.213 and Jackson v. Indiana, 406 U.S. 715 (1972).
Rule 3.213(a)(1) provides:1

       (a) Dismissal without         Prejudice     during    Continuing
       Incompetency.

       (1) If at any time after 5 years following a determination that a
       person is incompetent to stand trial or proceed with a probation
       or community control violation hearing when charged with a
       felony, . . . the court, after hearing, determines that the
       defendant remains incompetent to stand trial or proceed with
       a probation or community control violation hearing, that there
       is no substantial probability that the defendant will become
       mentally competent to stand trial or proceed with a probation

1 It appears that the dismissal order incorrectly cited rule 3.213(b), titled,
“Commitment or Treatment during Continuing Incompetency.”               That rule
requires dismissal of the charge and commitment of the defendant to the
Department of Children and Family Services. Fla. R. Crim. P. 3.213(b). The trial
court did not commit the defendant to any such facility. Regardless, rule 3.213(b)
also provides the same five-year mandatory period before a trial court can dismiss
a charge.

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      or community control violation hearing in the foreseeable
      future, and that the defendant does not meet the criteria for
      commitment, it shall dismiss the charges against the
      defendant without prejudice to the state to refile the charges
      should the defendant be declared competent to proceed in the
      future.

Fla. R. Crim. P. 3.213(a)(1) (emphasis added).

   Similarly, section 916.145, Florida Statutes, provides:

      The charges against any defendant adjudicated incompetent
      to proceed due to the defendant’s mental illness shall be
      dismissed without prejudice to the state if the defendant
      remains incompetent to proceed 5 years after such
      determination . . . . The charges against the defendant are
      dismissed without prejudice to the state to refile the charges
      should the defendant be declared competent to proceed in the
      future.

§ 916.145, Fla. Stat. (2015) (emphasis added).

    Cases reviewing the dismissal of charges, pursuant to section 916.145,
Florida Statutes, and rule 3.213 of the Florida Rules of Criminal Procedure
have uniformly and consistently enforced the five-year requirement before
dismissal. See Bryant v. State, 99 So. 3d 612, 613 (Fla. 5th DCA 2012)
(affirming denial of motion to dismiss because five years had not elapsed);
Tiburcio v. State, 95 So. 3d 1037 (Fla. 5th DCA 2012) (reversing dismissal
of charges because five years had not elapsed); Mosher v. State, 876 So. 2d
1230, 1232 (Fla. 1st DCA 2004) (affirming denial of motion to dismiss prior
to expiration of five years).

   Here, less than four years elapsed before the trial court dismissed the
charge against the defendant. Based on a plain reading of rule 3.213,
section 916.145, and case law, the trial court erred in dismissing the
charge.

   Jackson v. Indiana, 406 U.S. 715 (1972), does not change the result.
Jackson involved the constitutionality of Indiana’s statutory scheme for
pretrial commitment of incompetent defendants. Id. at 717–19. Under
that statutory scheme, the defendant’s involuntary commitment was
potentially a life sentence. Id. at 723. The court held that such an
indefinite commitment of a criminal defendant based solely on his
incompetence to stand trial violated the Fourteenth Amendment’s

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guarantee of due process. Id. at 738–39. Florida’s statutory scheme for
incompetent defendants does not run afoul of Jackson because defendants
“never run the risk of indefinite custodial restraint based solely on their
incompetency.” State v. Miranda, 137 So. 3d 1133, 1142 (Fla. 3d DCA
2014).

   Reversed and Remanded.

DAMOORGIAN and GERBER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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