This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0201d.HHS
DATE: 4/16/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 201 Criminal Defendants Adjudicated Incompetent to Proceed
SPONSOR(S): Maney
TIED BILLS: IDEN./SIM. BILLS: SB 1284
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Children, Families & Seniors Subcommittee 16 Y, 0 N Curry Brazzell
2) Health Care Appropriations Subcommittee 13 Y, 0 N Fontaine Clark
3) Health & Human Services Committee Curry Calamas
SUMMARY ANALYSIS
When a criminal defendant is found mentally incompetent to proceed to trial, the court may commit the
defendant to treatment in the state forensic system.
The state forensic system, governed by chapter 916, Florida Statutes, and administered by the Department of
Children and Families (DCF), is a network of state facilities and community services for persons who have
mental health issues, an intellectual disability or autism, and who are involved with the criminal justice system.
Offenders charged with a felony and adjudicated incompetent to proceed due to mental illness, and offenders
who are adjudicated not guilty by reason of insanity, may be involuntarily committed to state civil and forensic
treatment facilities by the court, or may be released on conditional release by the court if the person is not
serving a prison sentence. The committing court retains jurisdiction over the defendant while the defendant is
under involuntary commitment or conditional release.
If after being committed the defendant does not respond to treatment and is deemed non-restorable, the
defendant must either be released or civilly committed under the Baker Act.
A transfer evaluation is the process by which a person is evaluated for appropriateness of placement in a
mental health treatment facility. Under current law, DCF conducts a transfer evaluation when changing a civil
commitment placement under the Baker Act, but not when moving a forensic commitment to a civil
commitment.
HB 201 requires DCF to conduct a transfer evaluation of a non-restorable criminal defendant when
transitioning to a civil commitment under the Baker Act. The bill also requires a copy of the transfer be provided
to the court and counsel before initiating the transfer of the defendant back to the committing jurisdiction.
The bill does not have a fiscal impact on state or local government.
The bill provides an effective date of July 1, 2023.
STORAGE NAME: h0201d.HHS PAGE: 2
DATE: 4/16/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
State Forensic System
Criminal Defendants and Competency to Stand Trial
The Due Process Clause of the 14th Amendment to the United State Constitution prohibits the states
from trying and convicting criminal defendants who are incompetent to stand trial.
1
The states must
have procedures in place that adequately protect the defendant’s right to a fair trial, which includes his
or her participation in all material stages of the process.
2
Defendants must be able to appreciate the
range and nature of the charges and penalties that may be imposed, understand the adversarial nature
of the legal process, and disclose to counsel facts pertinent to the proceedings. Defendants also must
manifest appropriate courtroom behavior and be able to testify relevantly.
3
If a defendant is suspected of being mentally incompetent, the court, counsel for the defendant, or the
state may file a motion for examination to have the defendant’s cognitive state assessed.
4
If the motion
is well-founded the court will appoint experts to evaluate the defendant’s cognitive state. The
defendant’s competency is then determined by the judge in a subsequent hearing.
5
If the defendant is
found to be mentally competent, the criminal proceeding resumes.
6
If the defendant is found to be
mentally incompetent to proceed, the proceeding may not resume unless competency is restored.
7
Involuntary Commitment of Defendant Adjudicated Incompetent
Chapter 916, Florida Statutes, governs the state forensic system, which is a network of state facilities
and community services for persons who have mental health issues, an intellectual disability, or autism,
and who are involved with the criminal justice system. Offenders who are charged with a felony and
adjudicated incompetent to proceed due to mental illness
8
and offenders who are adjudicated not guilty
by reason of insanity may be involuntarily committed to state civil
9
and forensic
10
treatment facilities by
the circuit court.
11
However, in lieu of such commitment, the offender may be released on conditional
release
12
by the circuit court if the person is not serving a prison sentence.
13
The committing court
retains jurisdiction over the defendant while the defendant is under involuntary commitment or
conditional release.
14
1
Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed. 815 (1966); Bishop v. U.S., 350 U.S.961, 76 S.Ct. 440, 100 L.Ed. 835 (1956);
Jones v. State, 740 So.2d 520 (Fla. 1999).
2
Id. See also Rule 3.210(a)(1), Fla.R.Crim.P.
3
Id. See also s. 916.12, 916.3012, and 985.19, F.S.
4
Rule 3.210, Fla.R.Crim.P.
5
Id.
6
Rule 3.212, Fla.R.Crim.P.
7
Id.
8
“Incompetent to proceed” means “the defendant does not have sufficient present ability to consult with her or his lawyer with a
reasonable degree of rational understanding” or “the defendant has no rational, as well as factual, understanding of the proceedings
against her or him.” S. 916.12(1), F.S.
9
A “civil facility” is a mental health facility established within the Department of Children and Families (DCF) or by contract with DCF to
serve individuals committed pursuant to chapter 394, F.S., and defendants pursuant to chapter 916, F.S., who do not require the
security provided in a forensic facility; or an intermediate care facility for the developmentally disabled, a foster care facility, a group
home facility, or a supported living setting designated by the Agency for Persons with Disabilities (APD) to serve defendants who do not
require the security provided in a forensic facility. Section 916.106(4), F.S. The DCF oversees two state-operated forensic facilities,
Florida State Hospital and North Florida Evaluation and Treatment Center, and two privately-operated, maximum security forensic
treatment facilities, South Florida Evaluation and Treatment Center and Treasure Coast Treatment Center.
10
Section 916.106(10), F.S.
11
Sections 916.13, 916.15, and 916.302, F.S.
12
Conditional release is release into the community accompanied by outpatient care and treatment. Section 916.17, F.S.
13
Section 916.17(1), F.S.
14
Section 916.16(1), F.S. STORAGE NAME: h0201d.HHS PAGE: 3
DATE: 4/16/2023
A civil facility is, in part, a mental health facility established within the Department of Children and
Families (DCF) or by contract with DCF to serve individuals committed pursuant to ch. 394, F.S., and
defendants pursuant to ch. 916, F.S., who do not require the security provided in a forensic facility.
15
A forensic facility is a separate and secure facility established within DCF or the Agency for Persons
with Disabilities (APD) to service forensic clients committed pursuant to ch. 916, F.S.
16
A separate and
secure facility means a security-grade building for the purpose of separately housing individuals with
mental illness from persons who have intellectual disabilities or autism and separately housing persons
who have been involuntarily committed from non-forensic residents.
17
A court may only involuntarily commit a defendant adjudicated incompetent to proceed for treatment
upon finding clear and convincing evidence that:
18
The defendant has a mental illness and because of the mental illness:
o The defendant is manifestly incapable of surviving alone or with the help of willing and
responsible family or friends, including available alternative services, and, without
treatment, the defendant is likely to suffer from neglect or refuse to care for herself or
himself and such neglect or refusal poses a real and present threat of substantial harm
to the defendant’s well-being; or
o There is a substantial likelihood that in the near future the defendant will inflict serious
bodily harm on herself or himself or another person, as evidenced by recent behavior
causing, attempting, or threatening such harm.
All available, less restrictive treatment alternatives, including treatment in community residential
facilities or community inpatient or outpatient settings, which would offer an opportunity for
improvement of the defendant’s condition have been judged to be inappropriate; and
There 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.
If a person is committed pursuant to chapter 916, F.S., the administrator at the commitment facility
must submit a report to the court:
19
No later than 6 months after a defendant’s admission date and at the end of any period of
extended commitment; or
At any time the administrator has determined that the defendant has regained competency or
no longer meets the criteria for involuntary commitment.
Incompetent and Non-Restorable Defendants
If after being committed the defendant does not respond to treatment and is deemed non-restorable,
the administrator of the commitment facility must notify the court by filing a report in the criminal case.
20
Those who are found to be non-restorable must be civilly committed or released.
21
Non-Restorable Competency
15
Section 916.106(4), F.S.
16
Section 916.106(10), F.S. A separate and secure facility means a security-grade building for the purpose of separately housing
persons who have mental illness from persons who have intellectual disabilities or autism and separately housing persons who have
been involuntarily committed pursuant to chapter 916, F.S., from non-forensic residents.
17
Id.
18
Section 916.13(1), F.S.
19
Section 916.13(2), F.S.
20
Section. 916.13(2)(b), F.S.
21
Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004). STORAGE NAME: h0201d.HHS PAGE: 4
DATE: 4/16/2023
An individual’s competency is considered non-restorable when it is not likely that he or she will regain
competency in the foreseeable future.
22
The DCF must make every effort to restore the competency of
those committed pursuant to chapter 916, F.S., as incompetent to proceed. To ensure that all possible
treatment options have been exhausted, all competency restoration attempts in less restrictive, step-
down facilities should be considered prior to making a recommendation of non-restorability, particularly
for individuals with violent charges.
Individuals who are found to be non-restorable in less than five years of involuntary commitment under
section 916.13, F.S., require civil commitment proceedings or release. After an evaluator of
competency has completed a competency evaluation and determined that there is not a substantial
probability of competency restoration in the current environment in the foreseeable future, the evaluator
must notify the appropriate recovery team
23
coordinator that the individual’s competency does not
appear to be restorable.
After notification, the recovery team’s psychiatrist and clinical psychologist members must complete an
independent evaluation to examine suitability for involuntary placement. Once the evaluation to
examine suitability for involuntary placement is complete, the recovery team meets to consider the
following:
24
Mental and emotional symptoms affecting competency to proceed;
Medical conditions affecting competency to proceed;
Current treatments and activities to restore competency to proceed;
Whether relevant symptoms and conditions are likely to demonstrate substantive improvement;
Whether relevant and feasible treatments remain that have not been attempted, including
competency restoration training in a less restrictive, step-down facility; and
Additional information as needed (including barriers to discharge, pending warrants and
detainers, dangerousness, self-neglect).
The recovery team must document the team meeting and considerations for review, and, if applicable,
the extent to which the individual meets the criteria for involuntary examination pursuant to section
394.463, F.S., or involuntary inpatient placement pursuant to section 394.467(1), F.S. Each member of
the recovery team must provide a recommendation for disposition. Individuals with competency
reported as non-restorable may be considered, as appropriate, for recommendations of release without
legal conditions or involuntary examination or inpatient placement.
25
Competency Evaluation Report
Following the completion of the competency evaluation, the evaluation to examine suitability for
involuntary placement, and consideration of restorability, the evaluator of competency must complete a
competency evaluation report to the circuit court.
26
The report must include the following:
A description of mental, emotional, and behavioral disturbances;
An explanation to support the opinion of incompetence to proceed;
The rationale to support why the individual is unlikely to gain competence to proceed in the
foreseeable future;
22
DCF Operating Procedures No. 155-13, Mental Health and Substance Abuse: Incompetent to Proceed and Non-Restorable Status,
September 2021, at https://www.myflfamilies.com/sites/default/files/2022-12/cfop_155-13_incompetence_to_proceed_and_non-
restorable_status.pdf (last visited March 13, 2023).
23
A recovery team is an assigned group of individuals with specific responsibilities identified on the recovery plan including the resident,
psychiatrist, guardian/guardian advocate (if resident has a guardian/guardian advocate), community case manager, family member and
other treatment professionals commensurate with the resident’s needs, goals, and preferences. DCF Operating Procedures No. 155-
16, Recovery Planning and Implementation in Mental Health Treatment Facilities, May 16, 2019, at
https://www.myflfamilies.com/sites/default/files/2022-12/cfop_155-16_recovery_planning_and_implementation_in_mental_health_
treatment_facilities.pdf (last visited March 20, 2023).
24
Id.
25
Chapter 394, F.S., or Mosher v. State, 876 So. 2d 1230 (Fla. 1st DCA 2004).
26
DCF’s Operating Procedure 155-19, Evaluation and Reporting of Competency to Proceed, February 15, 2019, at
https://www.myflfamilies.com/sites/default/files/2022-12/cfop_155-19_evaluation_and_reporting_of_competency_to_proceed.pdf (last
visited March 20, 2023). STORAGE NAME: h0201d.HHS PAGE: 5
DATE: 4/16/2023
A clinical opinion that the individual no longer meets the criteria for involuntary forensic
commitment pursuant to Section 916.13, F.S.; and
A recommendation whether the individual meets the criteria for involuntary examination
pursuant to Section 394.463, F.S.
Civil Commitment after of Non-Restorable Defendant
Civil commitment is initiated in accordance with Part I of Chapter 394, F.S., otherwise referred to as the
“Baker Act.” The procedures in Chapter 394, F.S., ensure the due process rights of a person are
protected and require examination of a person believed to meet Baker Act criteria at a designated
receiving facility.
If a non-restorable defendant is returned to court in accordance with ch. 916, F.S., the criminal court
has authority to enter an order for involuntary Baker Act examination and the defendant is taken to the
nearest receiving facility. If found to meet criteria, a separate civil case is opened and the criminal case
may be dismissed.
27
Baker Act – Civil Commitment
The Baker Act was enacted in 1971 to revise the state’s mental health commitment laws.
28
The Baker
Act provides legal procedures for mental health examination and treatment, including voluntary and
involuntary examinations and treatment. The Baker Act also protects the rights of all individuals
examined or treated for mental illness in Florida.
29
Involuntary Examination
Individuals suffering from an acute mental health crisis may require emergency treatment to stabilize
their condition. Emergency mental health examination and stabilization services may be provided on a
voluntary or involuntary basis.
30
An involuntary examination is required if there is reason to believe that
the person has a mental illness and has, because of his or her mental illness, refused voluntary
examination, is likely to refuse to care for him or herself, or cause harm to him or herself or others, in
the near future.
31
An involuntary examination may be initiated by:
A court entering an ex parte order stating that a person appears to meet the criteria for
involuntary examination, based on sworn testimony;
32
A law enforcement officer taking a person who appears to meet the criteria for involuntary
examination into custody and delivering the person or having him or her delivered to a receiving
facility for examination;
33
or
A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and
family therapist, or clinical social worker executing a certificate stating that he or she has
examined a person within the preceding 48 hours and finds that the person appears to meet the
criteria for involuntary examination, including a statement of the professional’s observations
supporting such conclusion.
34
Involuntary patients must be taken to either a public or a private facility that has been designated by
DCF as a Baker Act receiving facility. The purpose of receiving facilities is to receive and hold, or refer,
27
Section.916.145, F.S.
28
Sections 394.451-394.47892, F.S.
29
Section 394.459, F.S.
30
Sections 394.4625 and 394.463, F.S., respectively.
31
S. 394.463(1), F.S.
32
Section 394.463(2)(a)1., F.S. Additionally, the order of the court must be made a part of the patient’s clinical record.
33
Section 394.463(2)(a)2., F.S. The officer must execute a written report detailing the circumstances under which the person was taken
into custody, and the report must be made a part of the patient’s clinical record.
34
Section 394.463(2)(a)3., F.S. The report and certificate shall be made a part of the patient’s clinical record STORAGE NAME: h0201d.HHS PAGE: 6
DATE: 4/16/2023
as appropriate, involuntary patients for mental health or substance abuse evaluation and to provide
treatment or transportation to the appropriate service provider.
35
For an involuntary examination under the Baker Act, a receiving facility must examine an involuntary
patient within 72 hours of arrival.
36
During that 72 hours, an involuntary patient must be examined by a
physician or a clinical psychologist, or by a psychiatric nurse performing within the framework of an
established protocol with a psychiatrist at a facility, to determine if the criteria for involuntary services
are met.
37
If the patient is a minor, the examination must be initiated within 12 hours.
38
Within that 72-hour examination period, or, if the 72 hours ends on a weekend or holiday, no later than
the next business day, one of the following must happen:
39
The patient must be released, unless he or she is charged with a crime, in which case law
enforcement will assume custody;
The patient must be released for voluntary outpatient treatment;
The patient, unless charged with a crime, must give express and informed consent to a
placement as a voluntary patient and admitted as a voluntary patient; or
A petition for involuntary placement must be filed in circuit court for involuntary outpatient or
inpatient treatment.
Forensic Commitment and Civil Commitment – Transfer Evaluations
Current law prohibits a state treatment facility from admitting a civil patient unless he or she has
undergone a transfer evaluation.
40
Transfer evaluation is the process by which a person is evaluated for
appropriateness of placement in a treatment facility.
41
This evaluation is typically used for transfers from
community placement to state mental health treatment facility placement.
Current law requires community mental health centers and clinics to evaluate each person seeking
voluntary admission to a state treatment facility and each person for whom involuntary placement in a
state treatment facility is sought, to determine and document:
Whether the person meets the statutory criteria for admission to a state treatment facility; and
Whether there are appropriate more integrated and less restrictive mental health treatment
resources available to meet the person’s needs.
Following the evaluation, the community mental health center or clinic shall recommend the admission
to a state treatment facility or, if criteria for involuntary placement are not met, to alternative treatment
programs and shall document that recommendation by completing and signing the transfer
evaluation.
42
Transfer evaluations are not currently used in the process of a forensic commitment becoming a civil
commitment.
Effect of the Bill
When DCF determines that a defendant will not, or is unlikely to gain competence to proceed to trial,
the bill requires DCF to initiate a transfer evaluation to determine if the defendant meets the criteria for
involuntary civil commitment under the Baker Act. The bill also requires the department to provide a
copy of the transfer evaluation to the court and counsel before initiating the transfer of the defendant
back to the committing jurisdiction.
35
S. 394.455(39), F.S. This term does not include a county jail.
36
S. 394.463(2)(g), F.S.
37
S. 394.463(2)(f), F.S.
38
S. 394.463(2)(g), F.S.
39
S. 394.463(2)(g), F.S.
40
S. 394.461(2), F.S.
41
S. 394.455(48), F.S.
42
Rule 65E-5.1301, F.A.C, and DCF Transfer Evaluation form CF-MH 3089. STORAGE NAME: h0201d.HHS PAGE: 7
DATE: 4/16/2023
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 916.13, F.S., relating to involuntary commitment of defendant adjudicated
incompetent.
Section 2: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Current law provides DCF with sufficient rulemaking authority to execute the provisions of the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
STORAGE NAME: h0201d.HHS PAGE: 8
DATE: 4/16/2023
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES