       Third District Court of Appeal
                               State of Florida

                         Opinion filed September 9, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2060
                          Lower Tribunal No. 10-7848
                             ________________


                 Department of Children and Families,
                                    Petitioner,

                                        vs.

                      The State of Florida and C.Z.,
                                  Respondents.



     A Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Ariana Fajardo Orshan, Judge.

     Javier A. Ley-Soto, Chief Regional Counsel, and Carlos A. Garcia, Assistant
Regional Counsel, for petitioner.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General; Carlos J. Martinez, Public Defender, and John Eddy Morrison,
Assistant Public Defender, for respondents.


Before SUAREZ, C.J., and SHEPHERD and ROTHENBERG, JJ.

      SHEPHERD, J.
      The Florida Department of Children and Families seeks certiorari relief from

a trial court order requiring it to place a chronically homeless, criminal defendant,

who is not restorable to competency to stand trial, in a secure, locked facility to

prevent him from wandering off and providing for his daily needs. The defendant

has been declared ineligible for commitment under the Baker Act, §§ 394.451 et

seq., Fla. Stat. (2011), the usual law pursuant to which an individual who is

incapable of caring for himself is involuntarily committed for treatment. We grant

the petition and quash the order of the lower court. A summary of the defendant’s

course through the criminal justice system is necessary to explain our decision.1

                           Facts and Procedural History

      C.Z. is a mentally ill individual who has been cycling through the criminal

justice system for more than ten years. The encounter which resulted in this case

occurred on March 11, 2010. On that date, City of Miami police arrested C.Z. on a

misdemeanor charge of criminal mischief, which escalated into felony charges of

resisting arrest and battery on a law enforcement officer. In May 2010, the trial

court ordered C.Z. to be evaluated to determine his competency to stand trial. On

June 29, 2010, the trial court held an evidentiary hearing, and found him

1 The charges against the defendant have recently been dismissed without prejudice
pursuant to section 916.145 of the Florida Statutes (2014). However, we agree
with the parties that this is a case that is likely to recur, and accordingly decline to
dismiss the case as moot. See Gregory v. Rice, 727 So. 2d 251, 252 (Fla. 1999)
(recognizing mootness does not destroy appellate jurisdiction on issues of great
public importance or which are likely to recur).

                                           2
incompetent to stand trial. This in turn led to an order of involuntary commitment

to the Department for treatment pursuant to section 916.13, Florida Statutes

(2011).

      On May 18, 2011, after further psychological testing, the trial court deemed

C.Z. non-restorable. This determination meant C.Z. could no longer be held under

section 916.13.    See Oren v. Judd, 940 So. 2d 1271 (Fla. 2d DCA 2006).

Nevertheless, it was plain to all involved – the judge, the prosecutor and defense

counsel – that while C.Z. failed to meet the legal requirements necessary to be

declared competent to stand trial, he was also not capable of caring for himself.

For the most part, the mental health professionals also held the opinion that C.Z.

was ineligible for involuntary civil commitment under the Baker Act. See §

394.467, Fla. Stat. (2011). By default, the only option the trial court had available

to provide placement for C.Z. was through conditional release, pursuant to section

916.17 of the Florida Statutes and Florida Rules of Criminal Procedures 3.212(d)

and 3.219. With the assistance of the State, Office of the Public Defender, and all

available mental health professionals and facilities, a succession of judges assigned

to this case, including the one who issued the order on appeal, made yeopersons’

efforts to lawfully secure C.Z. from self-harm (often traceable to his failure to self-

medicate), as well as harm by others, and to protect the community if C.Z. returned

to living on the streets. The following is a chronology of those efforts:



                                          3
 May 17, 2011: The defendant was ordered to reside at The Manor,
   while receiving services from the Fellowship House Program.

 June 21, 2011: The defendant was arrested for leaving The Manor
   without permission of the court, a violation of the defendant’s
   conditional plan of release.

 June 23, 2011: Pursuant to a court order, the defendant was evaluated
   by Dr. Ralph Richardson, who concluded the defendant required a
   locked-down program with 24-hour supervision due to his mental
   illness.

 September 1, 2011: The defendant was ordered to reside at Forensic
   Acute Stabilization and Treatment Program (FASTrack), a short-
   term, locked facility with 24-hour supervision.

 May 24, 2012: FASTrack advised the defendant had received all of
   the benefit possible from the FASTrack program, and the defendant
   was transferred to Passageway Residence of Miami-Dade County.

 July 19, 2012: The defendant resisted his placement at the
   Passageways Residence, and was removed to Greenview Assisted
   Living Facility, with day treatment at the Fellowship House.

 January 23, 2013: Following a sexual assault on a staff member, the
   defendant was transported to Westchester Hospital for psychiatric
   stabilization. Greenview refused to allow the defendant back into its
   facility.

 February 13, 2013: The defendant was ordered to reside at New
   Greenview Assisted Living Facility, a sister facility to Greenview
   Assisted Living Facility, with day treatment at Fellowship House.

 March 1, 2013: The court issued a warrant for the defendant’s arrest
   for absconding from New Greenview Assisted Living Facility. The
   warrant was served on March 4, 2013.




                             4
            March 25, 2013: Again, the court released the defendant back to New
              Greenview Assisted Living Facility, with day treatment at
              Fellowship House.

            April 19, 2013: The court issued a second warrant for the defendant’s
              arrest for absconding from New Greenview Assisted Living Facility.

            April 25, 2013: The court authorized a conditional release plan
              requiring the defendant to reside at Maylu Retirement Home.

            May 8, 2013: The court issued another warrant for the defendant’s
              arrest for absconding from the Maylu Retirement Home.

            May 21, 2013: When the defendant walked into the courthouse in a
              disheveled, unclean condition, the court took him into custody and
              ordered him transported to the Miami Behavioral Crisis Stabilization
              Unit.

            June 7, 2013: The court rejected a proposed conditional release plan
              to Superior Living of Little Havana and any plan to release the
              defendant to an assisted living facility, finding the levels of staff
              supervision and ingress and egress control at an assisted living
              facility inadequate to ensure proper care for the defendant.

            July 15, 2013: The court ordered the Department to place the
              defendant in a secure, locked facility, where his daily needs can be
              provided for and staff can prevent him from wandering off and
              becoming a danger to himself and others.

With this last order, the two-year cooperative efforts of the State, public defender

and trial court to provide mental health assistance to C.Z. dissolved.

      With the exception of short-term crisis stabilization, all of C.Z.’s court-

ordered placements during the two-year period were to facilities which were lightly

staffed and not secured or locked in any conventional sense. Generally, this is the



                                          5
type of facility to which a defendant is committed under the conditional release

statute for longer term residency and outpatient psychiatric services. In contrast,

commitment and treatment pursuant to section 916.13 occurs in secured and locked

facilities. However, the liberty interests, which lie at the heart of our nation’s

heritage, preclude the State from holding an individual indefinitely against his will

on criminal charges when it is plain that he can never be brought to court to answer

for his crimes. See Jackson v. Indiana, 406 U.S. 715, 738 (1972). It is that interest

which has arisen from its slumber in this case, and which compels us in the end to

quash the order under review.

                                      Analysis

      “Certiorari review is proper when it is alleged that the circuit court's

interpretation of a statute violates clearly established law or when it fails to follow

the dictates of a statute, and the error is sufficiently egregious as to result in a

miscarriage of justice.” In re Asbestos Litig., 933 So. 2d 613, 615 (Fla. 3d DCA

2006) (citing Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003));

see also Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000)). Certiorari

jurisdiction lies to rectify a trial court order to the Department to assume treatment

responsibilities for an individual beyond what is required by statute. See Dep’t of

Children & Families v. Carmona, 159 So. 3d 165 (Fla. 2d DCA 2015); Dep’t of

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



                                          6
Dep’t of Children & Families v. Davis, 923 So. 2d 1290 (Fla. 3d DCA 2006).2

This is such a case.

        We do not underestimate the predicament in which the trial judge found

herself in this case. For two years, the court, the State and the Office of the Public

Defender had labored to provide assistance to C.Z. As of the time of the hearing in

this case, C.Z. could no longer be held under section 916.13, and he was ineligible

for involuntary commitment under the Baker Act. C.Z. had been placed in and

walked out of various residential treatment facilities, with interim periods in

stabilization facilities. As the Department’s diversion specialist opined, “I don’t

think there’s anything that’s offered in the community right now that he hasn’t

been to or has been to.” C.Z.’s preferred living arrangement, by all accounts, is on

the streets of the City of Miami; but, when allowed to live there, C.Z.

“decompensates.” The cycle then repeats.

        On these facts, the trial court took what was her only last shot at providing

needed assistance to C.Z. She ordered the Department to create a placement for

C.Z.:

        Therefore, this Court further ORDERS and ADJUDGES that DCF
        place [C.Z.] in a secure locked facility to provide for his daily needs
        such as; food, shelter, medication administration and personal hygiene
        and to prevent him from wondering (sic) and becoming a danger to

2The Department also has standing to bring such a petition, despite the fact that it
was not a party to the criminal case or commitment proceeding. See
Carmona, 159 So. 3d at 166.

                                          7
       himself and others. Further, the mental health professionals involved
       in this case should immediately begin to work together to find suitable
       options for future placement; [C.Z.] requires a facility that will
       redirect him when he tries to leave and a facility that has supervision.
       Further, he would benefit greatly from a smaller facility. [C.Z.], if left
       unsupervised, will inadvertently leave an unlocked or unsupervised
       facility which places him in harm's way. [C.Z.’s] chronic mental
       illness prevents him from making appropriate decisions to protect
       himself.

In so doing, the trial judge acknowledged the only possible authority to support her

decision was section 916.17. This statute, entitled “Conditional release,” reads in

relevant part:

        (1) Except for an inmate currently serving a prison sentence, the
       committing court may order a conditional release of any defendant in
       lieu of an involuntary commitment to a facility pursuant to s.
       916.13 or s. 916.15 based upon an approved plan for providing
       appropriate outpatient care and treatment….

       (2) Upon the filing of an affidavit or statement under oath by any
       person that the defendant has failed to comply with the conditions of
       release, that the defendant's condition has deteriorated to the point that
       inpatient care is required, or that the release conditions should be
       modified, the court shall hold a hearing within 7 days after receipt of
       the affidavit or statement under oath. After the hearing, the court may
       modify the release conditions. The court may also order that the
       defendant be returned to the department if it is found, after the
       appointment and report of experts, that the person meets the
       criteria for involuntary commitment under s. 916.13 or s. 916.15.

(emphasis added). Unfortunately, the statute does not support the action taken by

the trial court.




                                           8
      By its terms, subsection (1) of the statute authorizes an outpatient alternative

to a locked involuntary commitment environment. The subsection expressly states

that it is to be employed “in lieu of an involuntary commitment.”        “In lieu of”

means “in place of.” Bryan A. Garner, A Dictionary of Modern Legal Usage, 449

(2d ed. 1995). Here, “in lieu of” means in place of involuntary commitment. The

provision carries out the intent of the Florida legislature expressed in section

916.105(3) that “evaluation and services to defendants who have mental illness . . .

be provided in community settings, in community residential facilities, or in civil

facilities, whenever feasible.” In our view, this subsection does not and is not

intended to create a separate statutory foundation for use by a trial court to order

the Department to house and treat a mentally ill person who has been found non-

restorable to competency to stand trial.

      Nor does subsection (2) of the conditional release statute assist the court in

upholding the commitment ordered in this case. This subsection first establishes

that in the event a defendant has failed to comply with the conditions of his release,

the conditions may be modified.       Here, the court has found that there is no

acceptable modification that is available. Subsection (2) then continues: “The

court may also order that the defendant be returned to the [D]epartment if it is

found, after the appointment and report of experts, that the person meets the

criteria for involuntary commitment under s. 916.13 or s. 916.15.” C.Z. meets



                                           9
neither of these requirements. As we have noted already, C.Z. has been found to

be non-restorable under section 916.13, and section 916.15 deals with defendants

who have been adjudicated not guilty by reason of insanity. Thus, this subsection

is likewise inapplicable in this case.

      Counsel for C.Z. argues, nevertheless, that the Department is statutorily

required to create “someplace for C.Z. to go.” Counsel reminds us that even under

medication, C.Z. is actively psychotic. He further points out the fact that, chiefly

because C.Z. will not obtain the required medication or self-medicate while living

on the streets, C.Z. deteriorates to a sub-human existence.3 Counsel then makes

the attractive argument that “The Florida legislature has charged the Department

with the responsibility for ‘the planning, evaluation, and implementation for a

complete and comprehensive statewide program of mental health, including

community services . . . ,’ §394.457(2)(a), Fla. Stat. (2012),” and, further quoting,

that “The department is responsible for . . . exercising supervision of mental health

programs of, and the treatment of patients at community health facilities, other

facilities, for persons who have a mental illness, and any agency or facility

providing services to patients pursuant to this part.” Id. However, counsel omits


3We   do not believe counsel is overwrought in his advocacy on this point. For
example, when C.Z. walked into the criminal courthouse unexpectedly on May 21,
2013, days after he had absconded from his residential placement, he was thin,
unstable in gait, dirty, and hallucinatory to the point of having a large blowfly on
his index finger, which he was petting as one would pet a dog or a cat.

                                         10
the directive from the Legislature, found in the same sub-section, that the services

shall be provided as “authorized and approved by the Legislature, based on the

annual budget of the department.” The Legislature has not established a mental

health program or service for individuals in C.Z.’s situation. Counsel’s cavil is

therefore with the Legislature, not the Department.

       The case before us is indistinguishable from Carmona, 159 So. 3d at 165.

As in our case, the trial court found William Carmona incompetent to proceed to

trial, and non-restorable. The trial court then ordered Mr. Carmona to be placed

indefinitely in the custody of the Department pursuant to the conditional release

provision of section 916.17(1), and that the Department assume the cost of the

placement. The Second District Court of Appeal quashed the order of the circuit

court, stating:

       [S]ection 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.

159 So. 3d at 167. In Carmona, as in this case, the statutory criteria were not met.




                                          11
       Amaya, 10 So. 3d at 152, cited by the Second District Court of Appeal in

Carmona, is a similar case. There, the defendant was arrested for forceful sexual

battery of his 13-year-old stepdaughter. The day after his arrest, he complained of

weakness in his left side and continuous headache and was transported to the

hospital. He was diagnosed with an inoperable brain tumor and was advised he

had approximately one year to live. In further proceedings, Amaya was found not

competent to proceed to trial, and that he was not likely to be restored to

competency because of the advanced stage of his brain tumor. The trial court

ordered him to be conditionally released to the care and custody of the Department

pursuant to section 916.17. The Fourth District Court of Appeal quashed the order.

As in Carmona, and as we decide today, that Court found that “Section 916.17

provides an alternative to placement in a treatment facility for defendants

committed to DCF under section 916.13. Contrary to the trial court’s order, an

incompetent defendant may not be committed to DCF if the statutory criteria [in

section 916.13] are not met.” Id. at 155-56.

      When a defendant is found non-restorable to competency and, therefore,

does not meet the criteria for commitment, the next step is either to initiate civil

commitment under the “Baker Act” or to release the defendant. See, e.g., State v.

Miranda 137 So. 3d 1133, 1135 (Fla. 3d DCA 2014) (citing Jackson v. Indiana 406

U.S. 715 (1972)); Dep’t of Children & Family Servs. v. State & Barnett, 124 So.



                                        12
3d 430, 433-34 (Fla. 2d DCA 2013) (citing Amaya, 10 So. 3d at 157). Florida

Rule of Criminal Procedure 3.219(d) purports to create a short, safe harbor-like

transition period before release, but only “for a period not to exceed 1 year.” This

time period had long expired by the time C.Z.’s final violation of his conditional

release plan had occurred. The only lawful alternative available to the trial judge

in this case was to release the defendant.

      Context requires us to remind ourselves that any assertion the court lacked

statutory authority for its action in this case must be analyzed with utmost care.

The involuntary commitment statute of this state is a “massive curtailment of

liberty.” Shuman v. State, 358 So. 2d 1333, 1335 (Fla. 1978) (quoting Humphrey

v. Cady, 405 U.S. 504, 509 (1972)). As the Florida Supreme Court recognized in

Pullen v. State, 802 So. 2d 1113, 1117 (Fla. 2001), “an individual who faces

involuntary commitment to a mental health facility has a liberty interest at stake.”

See also State v. Goode, 830 So. 2d 817 (Fla. 2002). “Those whom the State seeks

to involuntarily commit to a mental institution are entitled to the protection of our

Constitutions ….” Shuman, 358 So. 2d at 1335; see also Morel v. Wilkins, 84 So.

3d 226 (Fla. 2012); Mitchell v. State, 911 So. 2d 1211 (Fla. 2005). The Florida

Legislature recognizes as much in the preamble to Chapter 916. See §916.105(3),

Fla. Stat. (2014) (stating that “It is the intent of the Legislature that treatment or

training programs for defendants who are found to have mental illness . . . and are



                                             13
involuntarily committed . . . be provided in a manner . . . which insures the rights

of the defendants as provided in this chapter.”).

      In the instant case, the trial court used section 916.17 as its statutory

authority to find a placement for C.Z. beginning in May 2011, when C.Z. was first

found to be non-restorable to competency and no longer met the criteria for

involuntary commitment under section 916.13. Under subsection (2), the trial

court modified C.Z.’s release conditions on five different occasions for non-

compliance. In an effort to find adequate placement, the trial court ordered the

Department to “place [C.Z.] in a secure locked facility to provide for his daily

needs … and to prevent him from wondering (sic) and becoming a danger to

himself and others.” To implement this directive, the trial court returned C.Z. to

the custody of the Department. The order is no different in its effect on C.Z. than

the original order of commitment issued under section 916.13(1) of the Florida

Statutes, albeit with fewer safeguards.

      Due to the statutory constraints, the trial court was faced with the difficult

decision of either placing C.Z. in an unsecured community residential facility,

against the advice of the evaluating psychologists, or releasing C.Z. out on the

street. However, as was well stated in Barnett, 124 So. 3d at 433:

      While we certainly sympathize with the trial court's frustrations and
      unwillingness to contribute to potential chaos, we note that the rule of
      law simply does not permit a trial court to fashion its own remedy in
      derogation of statutory limitations, and good intentions cannot expand


                                          14
      the trial court's power in this regard. It is up to the legislature—not the
      trial court or this court—to close any gaps that may exist in the
      statutory scheme and to address the inadequacies of the existing law
      when applied to facts such as these.

We quash the order under review.

      Petition granted, order quashed.




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