HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 201 Criminal Defendants Adjudicated Incompetent to Proceed
SPONSOR(S): Health & Human Services Committee, 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 19 Y, 0 N, As CS 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 competency evaluation report is a standardized mental health document that addresses relevant mental
health issues and the individual’s clinical status regarding competence to proceed. A competency evaluation
report is completed during the process by which a person is evaluated to determine whether or not an
individual meets Baker Act criteria and in the process of moving a forensic commitment to a civil commitment.
HB 201 requires DCF to complete and submit a competency evaluation report to the circuit court within 30
days after the department determines that a defendant will not or is unlikely to regain competency to proceed.
The bill requires a qualified professional, as defined by statute, to sign the report under penalty of perjury. The
bill also defines competency evaluation report and specifies the minimum information that must be included in
the report.
The bill does not have a fiscal impact on state or local government.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0201e.HHS
DATE: 4/19/2023
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 civil9 and forensic 10 treatment facilities by
the circuit court.11 However, in lieu of such commitment, the offender may be released on conditional
release12 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. Rob inson, 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, unders tanding 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 contrac t 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 fa cility, 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.
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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).
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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 A competency evaluation report to the circuit court is
a standardized mental health document that addresses relevant mental health issues and the
individual’s clinical status regarding competence to proceed. The report is completed, pursuant to
section 916.13(2), F.S., and DCF Operating Procedure 155-19 (Evaluation and Reporting of
Competency to Proceed).27 The operating procedures provide guidelines for the format and minimal
content that must be included in the report. Evaluators may add other relevant and appropriate
22 DCF Operating Procedures No. 155-13, Mental Health and Sub stance Ab use: Incompetent to Proceed and Non -Restorab le 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 responsib ilities 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).
27 Id.
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information as necessary to report on the individual’s status and needs.28 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;
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.
In order for a criminal court to order an involuntary Baker Act examination there must be sworn
evidence that the defendant is believed to meet the Baker Act criteria. Reports from mental health
treatment facilities, such as the competency evaluation report, provide the court with sufficient
basis/evidence to enter an order for involuntary examination. These reports may be sworn upon
request of the court.29
A competency evaluation report is used in the process of a forensic commitment becoming a civil
commitment. However, to be considered in a criminal court proceeding as evidence that the defendant
meets Baker Act criteria, the report must be sworn. Currently, competency evalu