RULE 3.210. INCOMPETENCE TO PROCEED: PROCEDURE
FOR RAISING THE ISSUE

(a) Proceedings Barred during Incompetency. A person
accused of an offense or a violation of probation or community
control who is mentally incompetent to proceed at any material
stage of a criminal proceeding must not be proceeded against while
incompetent.

(1) A “material stage of a criminal proceeding” includes
the trial of the case, pretrial hearings involving questions of fact on
which the defendant might be expected to testify, entry of a plea,
violation of probation or violation of community control
proceedings, sentencing, hearings on issues regarding a defendant’s
failure to comply with court orders or conditions, or other matters
where the mental competence of the defendant is necessary for a
just resolution of the issues being considered. The terms
“competent,” “competence,” “incompetent,” and “incompetence,” as
used in rules 3.210–3.219, refer to mental competence or
incompetence to proceed at a material stage of a criminal
proceeding.

(2) The incompetence of the defendant does not
preclude such judicial action, hearings on motions of the parties,
discovery proceedings, or other procedures that do not require the
personal participation of the defendant.

(b) Motion for Evaluation. If at or in anticipation of any
material stage(s) of a criminal proceeding the court, on its own
motion or by motion of the state or defense, has reasonable grounds
to believe that the defendant is not mentally competent to proceed,
the court must promptly commence the process to determine the
defendant’s mental condition. The court may order the defendant to
be evaluated by no more than 3 experts, as needed, and must
expeditiously schedule and conduct a competency hearing.
Attorneys for the state and for the defendant may be present at any
examination by a court-appointed expert. Status hearing(s) must be
held no later than 20 days after the motion date and as otherwise
necessary to ensure prompt resolution, absent good cause, a final
hearing conducted no later than 45 days from the motion date.

(1) A motion for the evaluation made by counsel for the
defendant must be written and contain a certificate of counsel that
the motion is made in good faith and on reasonable grounds to
believe that the defendant may be incompetent to proceed. To the
extent that it does not invade the lawyer-client privilege, the motion
shall contain a recital of the specific observations of and
conversations with the defendant that have formed the basis for the
motion.

(2) A motion for the evaluation made by counsel for the
state must be written and contain a certificate of counsel that the
motion is made in good faith and on reasonable grounds to believe
the defendant may be incompetent to proceed and shall include a
recital of the specific facts that have formed the basis for the
motion, including a recitation of the observations of and statements
of the defendant that have caused the state to file the motion.

(3) If the defendant has been released on bail or other
release provision, the court may order the defendant to appear at a
designated place for evaluation at a specific time as a condition of
such release. If the court determines that the defendant will not
submit to the evaluation or that the defendant is not likely to
appear for the scheduled evaluation, the court may order the
defendant taken into custody until the determination of the
defendant’s competency to proceed. A motion made for evaluation
under this subdivision does not otherwise affect the defendant’s
right to release.

(4) The order appointing experts must, as described in
Rule 3.211:

(A) identify the purpose or purposes of the
evaluation, including the nature of the material proceeding(s), and
specify the area or areas of inquiry that should be addressed by the
evaluator;

(B) specify the legal criteria to be applied; and

(C) specify the date by which the report should be
submitted and to whom the report should be submitted.

Committee Notes

1968 Adoption. (a) Same as section 917.01, Florida Statutes,
except it was felt that court cannot by rule direct institution
officials. Thus words, “he shall report this fact to the court which
conducted the hearing. If the officer so reports” and concluding
sentence, “No defendant committed by a court to an institution, by
reason of the examination referred to in this paragraph, shall be
released therefrom, without the consent of the court committing
him,” should be omitted from the rule but retained by statute.

(b) Same as section 909.17, Florida Statutes.

(c) Same as section 917.02, Florida Statutes.

1972 Amendment. Subdivision (a)(3) refers to Jackson v.
Indiana, 406 U.S. 715, 730, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972);
also, United States v. Curry, 410 F.2d 1372 (4th Cir. 1969).
Subdivision (d) is added to give the court authority to confine an
insane person who is likely to cause harm to others even if the
person is otherwise entitled to bail. The amendment does not apply
unless the defendant contends that he or she is insane at the time
of trial or at the time the offense was committed. The purpose of the
amendment is to prevent admittedly insane persons from being at
large when there is a likelihood they may injure themselves or
others.

1977 Amendment. This language is taken, almost verbatim,
from existing rule 3.210(a). The word “insane” is changed to reflect
the new terminology, “competence to stand trial.” The definition of
competence to stand trial is taken verbatim from the United States
Supreme Court formulation of the test in Dusky v. United States,
362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

(a)(2) The first part of this paragraph is taken, almost verbatim,
from the existing rule. The right of counsel for the state to move for
such examination has been added.

(b)(1) In order to confine the defendant as incompetent to stand
trial, the defendant must be confined under the same standards as
those used for civil commitment. These criteria were set forth in the
recent U.S. Supreme Court case of Jackson v. Indiana, 406 U.S.
715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), in which it was held to
be a denial of equal protection to subject a criminal defendant to a
more lenient commitment standard than would be applied to one
not charged with a crime. Therefore, the criteria for involuntary civil
commitment should be incorporated as the criteria for commitment
for incompetence to stand trial.

In this subdivision is found the most difficult of the problems
to resolve for the rule. The head-on conflict between the Department
of Health and Rehabilitative Services, a part of the executive branch
of the government, and the courts occurs when the administrator
determines that a defendant no longer should be confined, but the
trial judge does not wish the defendant released because the trial
judge feels that further commitment is necessary. Under the civil
commitment model, the administrator has the power to release a
committed patient at such time as the administrator feels the
patient no longer meets the standards for commitment. Obviously,
since a defendant in a criminal case is under the jurisdiction of the
court, such immediate release is unwarranted.
The time period of the initial commitment parallels that of civil
commitment.

(b)(2) treats the problem of what the court should do with a
defendant who is not competent to stand trial, but who fails to meet
the criteria for commitment. If incompetent, but not in need of
treatment and not dangerous, then the defendant cannot be
committed. The present rule provides for dismissal of the charges
immediately. There appears to be no reason why someone in this
situation should not be released pending trial on bail, as would
other defendants.

The finding of “not guilty by reason of insanity,” required
under the present rule when a defendant cannot be tried by reason
of incompetence, seems inappropriate since such a defense admits
the commission of the fact of the crime but denies the defendant’s
mental state. Since no such finding has been made (and cannot be
made), the verdict entered of not guilty by reason of insanity is not
appropriate. Further, it would give a defendant, later competent, a
res judicata or double jeopardy defense, the verdict being a final
determination of guilt or innocence. It would seem far more
appropriate to withdraw the charges. A defendant who regains
competence within the period of the statute of limitations could still
be tried for the offense, if such trial is warranted.

One of the major problems confronting the institution in which
an incompetent person is being held is that of obtaining consent for
medical procedures and treatment, not necessarily mental
treatment. Generally, under the statute, the patient civilly
committed is not thereby deemed incompetent to consent. At the
commitment hearing in the civil proceedings, the judge may make
the general competency determination. It is recommended that the
same process apply in the hearing on competency to stand trial,
and that, if the trial judge does not find the defendant incompetent
for other purposes, the defendant be legally considered competent
for such other purposes.

1980 Amendment.
(a) This provision is identical to that which has been
contained in all prior rules and statutes relating to competence to
stand trial. No change is suggested.

(b) In order to ensure that the proceedings move quickly the
court is required to set a hearing within 20 days. This subdivision
should be read in conjunction with rule 3.211 which requires the
experts to submit their report to the court at such time as the court
shall specify. The court therefore determines the time on which the
report is to be submitted. The provision requiring at least 2 but no
more than 3 experts is meant to coincide with section 394.02,
Florida Statutes (1979), in which the legislature provides for the
number of experts to be appointed and that at least 1 of such
experts be appointed from a group of certain designated state-
related professionals. This legislative restriction on appointment will
ensure that the Department of Health and Rehabilitative Services
will, to some extent, be involved in the hospitalization decision-
making process. Other possible procedures were discussed at great
length both among members of the committee and with
representatives of the legislature, but it was decided that any more
specific procedures should be developed on the local level in the
individual circuits and that it would be inappropriate to mandate
such specific procedures in a statewide court rule. Since it was felt
by the committee to be a critical stage in the proceedings and
subject to Sixth Amendment provisions, and since no psychiatrist-
patient privilege applies to this stage of the proceeding, the
committee felt that attorneys for both sides should have the right to
be present at such examinations.

(1) and (2) A motion for examination relative to competency to
stand trial should not be a “boiler plate” motion filed in every case.
The inclusion of specific facts in the motion will give the trial judge
a basis on which to determine whether there is sufficient indication
of incompetence to stand trial that experts should be appointed to
examine the defendant. Provision was made that conversations and
observations need not be disclosed if they were felt to violate the
lawyer-client privilege. Observations of the defendant were included
in this phrase in that these may, in some cases, be considered
“verbal acts.”
(3) The mere filing of a motion for examination to determine
competence to stand trial should not affect in any way the provision
for release of a defendant on bail or other pretrial release provision.
If a defendant has been released on bail, the judgment already
having been made that he or she is so entitled, and as long as the
defendant will continue to appear for appropriate evaluations, the
mere fact that the motion was filed should not abrogate the right to
bail. Obviously, if other factors would affect the defendant’s right to
release or would affect the right to release on specific release
conditions, those conditions could be changed or the release
revoked. By making the requirement that the defendant appear for
evaluation a condition of release, the court can more easily take
back into custody a defendant who has refused to appear for
evaluation, and the defendant can then be evaluated in custody.

1988 Amendment. Title. The title is amended to reflect
change in subdivision (a)(1), which broadens the issue of
competency in criminal proceedings from the narrow issue of
competency to stand trial to competency to proceed at any material
stage of a criminal proceeding.

(a) This provision is broadened to prohibit proceeding
against a defendant accused of a criminal offense or a violation of
probation or community control and is broadened from competency
to stand trial to competency to proceed at any material stage of a
criminal proceeding as defined in subdivision (1).

(1) This new provision defines a material stage of a criminal
proceeding when an incompetent defendant may not be proceeded
against. This provision includes competence to be sentenced, which
was previously addressed in rule 3.740 and is now addressed with
more specificity in the new rule 3.214. Under the Florida Supreme
Court decision of Jackson v. State, 452 So. 2d 533 (Fla. 1984), this
definition would not apply to a motion under rule 3.850.

(2) This new provision allows certain matters in a criminal
case to proceed, even if a defendant is determined to be
incompetent, in areas not requiring the personal participation of the
defendant.
(b) This provision is amended to reflect the changes in
subdivision (a) above.

(1) Same as above.

(2) Same as above.

(3) Same as above. This provision also changes the phrase
“released from custody on a pre-trial release provision” to “released
on bail or other release provision” because the term “custody” is
subject to several interpretations.

(4) This new provision is designed to specify and clarify in
the order appointing experts, the matters the appointed experts are
to address, and to specify when and to whom their reports are to be
submitted. Court-appointed experts often do not understand the
specific purpose of their examination or the specifics of the legal
criteria to be applied. Specifying to whom the experts’ reports are to
be submitted is designed to avoid confusion.

1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.

Introductory Note Relating to Amendments to Rules 3.210
to 3.219. In 1985, the Florida Legislature enacted amendments to
part I of chapter 394, the “Florida Mental Health Act,” and
substantial amendments to chapter 916 entitled “Mentally Deficient
and Mentally Ill Defendants.” The effect of the amendments is to
avoid tying mentally ill or deficient defendants in the criminal
justice system to civil commitment procedures in the “Baker Act.”
Reference to commitment of a criminal defendant found not guilty
by reason of insanity has been removed from section 394.467,
Florida Statutes. Chapter 916 now provides for specific commitment
criteria of mentally ill or mentally retarded criminal defendants who
are either incompetent to proceed or who have been found not
guilty by reason of insanity in criminal proceedings.

In part, the following amendments to rules 3.210 to 3.219 are
designed to reflect the 1985 amendments to chapters 394 and 916.
Florida judges on the criminal bench are committing and the
Department of Health and Rehabilitative Services (HRS) mental
health treatment facilities are admitting and treating those mentally
ill and mentally retarded defendants in the criminal justice system
who have been adjudged incompetent to stand trial and defendants
found to be incompetent to proceed with violation of probation and
community control proceedings. Judges are also finding such
defendants not guilty by reason of insanity and committing them to
HRS for treatment, yet there were no provisions for such
commitments in the rules.

Some of the amendments to rules 3.210 to 3.219 are designed
to provide for determinations of whether a defendant is mentally
competent to proceed in any material stage of a criminal proceeding
and provide for community treatment or commitment to HRS when
a defendant meets commitment criteria under the provisions of
chapter 916 as amended in 1985.