                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED

                                                 IN THE DISTRICT COURT OF APPEAL
                                                 OF FLORIDA
                                                 SECOND DISTRICT

MOSES McCRAY,                      )
                                   )
           Petitioner,             )
                                   )
v.                                 )                    Case No. 2D17-332
                                   )
STATE OF FLORIDA,                  )
                                   )
           Respondent.             )
___________________________________)

Opinion filed August 4, 2017.

Petition for Writ of Certiorari to the Circuit
Court for Polk County; Wayne M. Durden,
Judge.

Howard L. Dimmig, II, Public Defender,
Robert A. Young, General Counsel, and
David Horton, Assistant Public Defender,
Bartow, for Petitioner.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Helene S. Parnes,
Senior Assistant Attorney General,
Tampa, for Respondent.


LaROSE, Chief Judge.

              Moses McCray suffers from mental illness. Accordingly, the trial court

adjudicated him incompetent to proceed to trial. He now petitions for a writ of certiorari

quashing the trial court's order entered following our decision in McCray v. State, 200

So. 3d 1296 (Fla. 2d DCA 2016). In particular, Mr. McCray seeks relief from that portion
of the order imposing "appropriate release conditions" pursuant to Florida Rule of

Criminal Procedure 3.212(d). We have jurisdiction under Florida Rule of Appellate

Procedure 9.030(b)(2), and we deny the petition.

                                        Background

              The State charged Mr. McCray with burglary and related theft offenses.

The trial court adjudicated him incompetent to proceed. Mr. McCray has not been

restored to competency.

              Following his adjudication of incompetency, Mr. McCray filed an

unsuccessful motion to dismiss the information. The trial court, however, continued a

program of conditional release pursuant to section 916.17, Florida Statutes (2014). Mr.

McCray filed a certiorari petition (Petition I), arguing that the trial court's order departed

from the essential requirements of law. See Gonzalez v. State, 15 So. 3d 37, 39 (Fla.

2d DCA 2009) ("To obtain common law certiorari relief, a petitioner must show that

there has been a departure from the essential requirements of law that causes material

and irreparable harm." (citing Reynolds v. State, 963 So. 2d 908, 909 (Fla. 2d DCA

2007))).

              We granted in part and denied in part Petition I. McCray, 200 So. 3d at

1296-97. Specifically, we quashed the portion of the order continuing Mr. McCray's

conditional release. We reasoned that because he "did not qualify for involuntary

commitment under section 916.13," he was ineligible "for placement on conditional

release under section 916.17 as a matter of statutory text." Id. We also denied Mr.

McCray's request to dismiss the information "because fewer than five years have

elapsed since the original determination that Mr. McCray was incompetent to proceed

due to mental illness." Id. at 1297 (citing § 916.145).
                                             -2-
              Following our opinion in McCray, the trial court conducted a hearing and

entered the order that prompted the instant certiorari proceeding (Petition II). The order

before us: (1) struck the prior order placing Mr. McCray on conditional release pursuant

to section 916.17; (2) imposed many of those same conditions relying on rule 3.212(d);

and (3) denied Mr. McCray's renewed motion to dismiss pursuant to section 916.145.

                                     Certiorari Petition

              In Petition II, Mr. McCray claims that the trial court's order ignores our

McCray opinion because it simply reimposes many of the same conditions of release.

More specifically, Mr. McCray contends that because rule 3.212 is procedural, it does

not control over the explicit language of section 916.13, which allows for his involuntary

commitment only if he meets certain criteria. This includes if "[t]here is a substantial

probability that the mental illness causing the defendant's incompetence will respond to

treatment and the defendant will regain competency to proceed in the reasonably

foreseeable future." § 916.13(1)(c). He also maintains that the order disregards the

doctrines of res judicata and the law of the case. We cannot accept any of his premises

for relief.

                                          Analysis

              Mr. McCray asserts that the trial court improperly imposed liberty-limiting

conditions pursuant to rule 3.212(d) to achieve the purposes of statutory conditional

release, for which Mr. McCray did not qualify.

              As an initial matter, we observe that "[c]ertiorari 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, 616 (Fla.

                                             -3-
3d DCA 2006); cf. Fassy v. Crowley, 884 So. 2d 359, 363-64 (Fla. 2d DCA 2004) ("A

departure from the essential requirements of the law necessary for the issuance of a

writ of certiorari is something more than a simple legal error. There must be a violation

of a clearly established principle of law resulting in a miscarriage of justice." (citing

Combs v. State, 436 So. 2d 93, 95-96 (Fla. 1983))). But, upon a thorough review of the

record, we must conclude that Petition II cannot stand.

              In Mr. McCray's situation, "[t]he proper course when an incompetent

defendant does not meet the criteria for commitment, and cannot be restored to

competency, is for the State to initiate civil commitment proceedings under the Baker

Act or for the court to release the defendant 'on appropriate conditions' as provided in

Rule 3.212(d)." Dep't of Children & Family Servs. v. Amaya, 10 So. 3d 152, 157 (Fla.

4th DCA 2009) (emphasis added) (citing Abreu–Gutierrez v. James, 1 So. 3d 262, 267

(Fla. 4th DCA 2009)); see also Dep't of Children & Families v. State, 201 So. 3d 78, 79

(Fla. 3d DCA 2015) (stating that because the respondent was ineligible for involuntary

civil commitment under the Baker Act, "[b]y default, the only option the trial court had

available to provide placement . . . was through . . . Florida Rule [] of Criminal

Procedure[] 3.212(d)"). Accordingly, consistent with McCray, the trial court exercised its

informed judgment to craft a solution balancing Mr. McCray's liberty interests with the

need to provide for his own protection, as well as that of the public. See Dougherty v.

State, 149 So. 3d 672, 677 (Fla. 2014) ("Florida Rules of Criminal Procedure 3.210-

3.212 were enacted to set forth the required competency hearing procedures for

determining whether a defendant is competent to proceed or has been restored to

competency." (citing Mora v. State, 814 So. 2d 322, 333 (Fla. 2002))); see also Se.

Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So. 3d 73, 78 (Fla. 2012) ("Article V,
                                             -4-
section 2(a), of the Florida Constitution grants this Court the exclusive authority to adopt

rules of judicial practice and procedure for actions filed in this State . . . ." (citing Allen v.

Butterworth, 756 So. 2d 52, 59 (Fla. 2000))).

               The trial court's order avoids imposition of conditional release under

section 916.17. McCray, 200 So. 3d at 1296-97. Instead, the trial court imposed

"appropriate conditions,"1 several of which are specifically enumerated in rule 3.212(d):

               If the court decides that a defendant is not mentally
               competent to proceed but does not meet the criteria for
               commitment, the defendant may be released on appropriate
               release conditions. The court may order that the defendant
               receive outpatient treatment at an appropriate local facility
               and that the defendant report for further evaluation at
               specified times during the release period as conditions of
               release. A report shall be filed with the court after each
               evaluation by the persons appointed by the court to make
               such evaluations, with copies to all parties. The procedure
               for determinations of the confidential status of reports is
               governed by Rule of Judicial Administration 2.420.

Fla. R. Crim. P. 3.212(d); see also State v. Miranda, 137 So. 3d 1133, 1142 (Fla. 3d

DCA 2014) ("Rule 3.212(d) allows a court to order appropriate release conditions for up

to a year, including outpatient treatment at an appropriate local facility and reporting for

further evaluation, if a defendant is not mentally competent but does not meet the

criteria for commitment." (quoting Graham v. Jenne, 837 So. 2d 554, 559 (Fla. 4th DCA

2003))).

               Seemingly, Mr. McCray does not challenge the propriety of the conditions

imposed. Rather, he contends that the trial court lacked authority to impose them after



               1
              Specifically, the trial court ordered that Mr. McCray continue to reside
with his mother, continue to take his prescribed psychotropic medication, avoid the use
or possession of alcohol or nonprescribed controlled substances, not own or possess a
firearm or weapon, and report for further mental health evaluations.
                                             -5-
our opinion from Petition I. Our earlier opinion made no specific mention of rule 3.212,

and, thus, we cannot conclude that the trial court ignored our mandate.

              To the contrary, the trial court studiously endeavored to comply with our

mandate. Significantly, the order before us provides that "the Department of Children

and Families has no further obligation to monitor future compliance with this Order."

Therefore, the trial court was at once dutiful to our McCray opinion, while also

eliminating any concern that the Department would be tasked with any responsibilities

beyond those required by the law. See Amaya, 10 So. 3d at 154 ("Certiorari jurisdiction

lies to review [the Department's] claim that the trial court has acted in excess of its

jurisdiction by ordering [the Department] to undertake responsibilities beyond what is

required by statute."); Dep't of Children & Family Servs. v. State, 124 So. 3d 430, 432-

33 (Fla. 2d DCA 2013) ("A court that commits a defendant in violation of [section

916.13] improperly encroaches on the legislature's authority to prescribe the limits of an

agency's obligations and on an agency's obligation to expend its appropriated funds in

accordance with the laws governing that agency.").

              The State did not seek conditions of release under rule 3.212(d) prior to

our issuance of McCray. Contrary to Mr. McCray's position, however, the law of the

case did not preclude the State from raising the argument for the first time following

issuance of McCray. The law of the case doctrine requires "that questions of law

actually decided on appeal must govern the case in the same court and the trial court,

through all subsequent stages of the proceedings." Fla. Dep't of Transp. v. Juliano, 801

So. 2d 101, 105 (Fla. 2001) (citing Greene v. Massey, 384 So. 2d 24, 28 (Fla. 1980)).

"The law of the case doctrine applies only to issues actually considered and decided in

a prior appeal involving the same case." Bloco, Inc. v. Porterfield Oil Co., 990 So. 2d
                                            -6-
578, 581 (Fla. 2d DCA 2008) (citing Analyte Diagnostics, Inc. v. D'Angelo, 792 So. 2d

1271, 1272 (Fla. 4th DCA 2001)). Stated differently, the scope of the law of the case is

"limited to rulings on questions of law actually presented and considered on a former

appeal." U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061, 1063 (Fla. 1983); see also

Gabor v. Gabor & Co., 599 So. 2d 737, 738-39 (Fla. 3d DCA 1992); Gibson v. Maloney,

263 So. 2d 632, 635 (Fla. 1st DCA 1972).

               The applicability of rule 3.212(d)'s conditions was neither raised nor

addressed in Petition I. Thus, our disposition in McCray did not foreclose the State from

raising the argument anew upon release of the opinion. See, e.g., Arch Se. Commc'ns,

Inc. v. Abraham Commc'ns, Inc., 702 So. 2d 556, 558 (Fla. 2d DCA 1997) (holding that

prior per curiam affirmance of the trial court's decision denying motion to compel

arbitration, was not "law of the case" concerning whether buyer and seller entered into

valid oral agreement settling disposition of escrowed money); Harbour Club Condo. No.

Three, Inc. v. Sauder, 380 So. 2d 449, 450 (Fla. 2d DCA 1979) (holding that mandate

did not preclude the trial court from considering unconscionability argument on remand

because that issue had not been decided by the trial court nor considered by this court

in the first appeal).

               Nor did the res judicata doctrine stop the State from raising the rule 3.212

argument on remand. As the Florida Supreme Court has explained:

               A judgment on the merits rendered in a former suit between
               the same parties or their privies, upon the same cause of
               action, by a court of competent jurisdiction, is conclusive not
               only as to every matter which was offered and received to
               sustain or defeat the claim, but as to every other matter
               which might with propriety have been litigated and
               determined in that action.



                                            -7-
Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla. 1984) (emphasis added) (quoting Wade

v. Clower, 114 So. 548, 552 (1927)). As the prevailing party in the proceedings

precipitating our McCray opinion, the State could not, and logically would not, have

sought affirmance based upon an argument that was neither raised below nor

preserved for appeal. See Castor v. State, 365 So. 2d 701, 703 (Fla. 1978) ("[A]

reviewing court will not consider points raised for the first time on appeal."); Archer v.

State, 613 So. 2d 446, 448 (Fla. 1993) ("For an issue to be preserved for appeal,

however, it 'must be presented to the lower court and the specific legal argument or

ground to be argued on appeal must be part of that presentation if it is to be considered

preserved.' " (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985))).

              For the foregoing reasons, Mr. McCray's concern that the trial court was

prevented from imposing appropriate release conditions pursuant to rule 3.212(d)

following remand from our McCray opinion, is without merit.

              Petition denied.




CRENSHAW and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                            -8-
