RULE 3.211. COMPETENCE TO PROCEED: SCOPE OF
EXAMINATION AND REPORT

(a) Examination by Experts. On appointment by the court,
the experts must examine the defendant with respect to the issue of
competence to proceed, as specified by the court in its order
appointing the experts to evaluate the defendant, and must
evaluate the defendant as ordered.

(1) The experts must first consider factors related to
the issue of whether the defendant meets the criteria for
competence to proceed; that is, whether the defendant has
sufficient present ability to consult with counsel with a reasonable
degree of rational understanding and whether the defendant has a
rational, as well as factual, understanding of the pending
proceedings.

(2) In considering the issue of competence to proceed,
the examining experts must consider and include in their report:

(A) the defendant’s capacity to:
(i) appreciate the charges or allegations
against the defendant;

(ii) appreciate the range and nature of
possible penalties, if applicable, that may be imposed in the
proceedings against the defendant;

(iii) understand the adversary nature of the
legal process;

(iv) disclose to counsel facts pertinent to the
proceedings at issue;

(v) manifest appropriate courtroom behavior;

(vi) testify relevantly; and

(B) any other factors deemed relevant by the
experts.

(b) Factors to Be Evaluated. If the experts should find that
the defendant is incompetent to proceed, the experts must report on
any recommended treatment for the defendant to attain competence
to proceed. In considering the issues relating to treatment, the
examining experts must report on:

(1) the mental illness or intellectual disability causing
the incompetence;

(2) the completion of a clinical assessment by approved
mental health experts trained by the department to ensure safety of
the patient and the community;

(3) the treatment or treatments appropriate for the
mental illness or intellectual disability of the defendant and an
explanation of each of the possible treatment alternatives,
including, at a minimum, mental health services, treatment
services, rehabilitative services, support services, and case
management services as described in s. 394.67, which may be
provided by or within multi-disciplinary community treatment
teams, such as Florida Assertive Community Treatment, conditional
release programs, outpatient services or intensive outpatient
treatment programs, and supportive employment and supportive
housing opportunities in treating and supporting the recovery of the
patient;

(4) the availability of acceptable treatment. If treatment
is available in the community, the expert must so state in the
report; and

(5) the likelihood of the defendant attaining competence
under the treatment recommended, an assessment of the probable
duration of the treatment required to restore competence, and the
probability that the defendant will attain competence to proceed in
the foreseeable future.

(c) Written Findings of Experts. Any written report
submitted by the experts must:

(1) identify the specific matters referred for evaluation;

(2) describe the evaluative procedures, techniques, and
tests used in the examination and the purpose or purposes for
each;

(3) state the expert’s clinical observations, findings,
and opinions on each issue referred for evaluation by the court, and
indicate specifically those issues, if any, on which the expert could
not give an opinion;

(4) identify the sources of information used by the
expert and present the factual basis for the expert’s clinical findings
and opinions; and

(5) include a full and detailed explanation regarding
why the alternative treatment options referenced in the evaluation
are insufficient to meet the needs of the defendant.
The procedure for determinations of the confidential status of
reports is governed by Rule of General Practice and Judicial
Administration 2.420.

(d) Limited Use of Competency Evidence.

(1) The information contained in any motion by the
defendant for determination of competency to proceed or in any
report of experts filed under this rule insofar as the report relates
solely to the issues of competency to proceed and commitment, and
any information elicited during a hearing on competency to proceed
or commitment held under this rule, must be used only in
determining the mental competency to proceed or the commitment
or other treatment of the defendant.

(2) The defendant waives this provision by using the
report, or portions thereof, in any proceeding for any other purpose,
in which case disclosure and use of the report, or any portion
thereof, are governed by applicable rules of evidence and rules of
criminal procedure. If a part of the report is used by the defendant,
the state may request the production of any other portion of that
report that, in fairness, ought to be considered.

Committee Notes

1980 Adoption. This rule provides for appointment of experts
and for the contents of the report which the experts are to render.
Since the issue of competency has been raised, the experts will, of
course, report on this issue. If there is reason to believe that
involuntary hospitalization is also required, the court should order
the experts to make this evaluation as well during their initial
examination. It was felt, however, that the experts should not
inquire into involuntary hospitalization as a matter of course, but
only if sufficient reasonable grounds to do so were alleged in the
motion, comparing the procedure to that required by the civil
commitment process.

(a) Certain factors relating to competency to stand trial have
been determined to be appropriate for analysis by examining
experts. Often, with different experts involved, the experts do not
use the same criteria in reaching their conclusions. The criteria
used by experts who testify at the competency and commitment
hearings may not be the same as those used by persons involved in
the treatment process or later hearings after treatment. This
subdivision, therefore, addresses those factors which, at least,
should be considered by experts at both ends of the spectrum.
Additional factors may be considered, and these factors listed may
be addressed in different ways. At least the requirement that these
specific factors be addressed will give a common basis of
understanding for the experts at the competency hearing, the trial
judge, and the experts who will later receive a defendant who is
found to be incompetent to stand trial and in need of involuntary
hospitalization. The test for determining competency to stand trial
is that which has been contained in both the prior rules and
statutes developed from Dusky v. United States, 362 U.S. 402, 80
S.Ct. 788, 4 L.Ed.2d 824 (1960).

(1) The factors set forth in this section have been developed
by the Department of Health and Rehabilitative Services (HRS) in its
Competency Evaluation Instrument, a refinement of the McGarry
Competency Evaluation Procedure.

(b) The issue of involuntary hospitalization is to be
considered only if the court has ordered the experts to consider this
issue; the court would do so if it found that there existed reasonable
grounds to believe that the defendant met the criteria for
involuntary hospitalization. The factors set forth in order to
determine this issue are those that have been developed through
prior statutes relating to involuntary hospitalization, from the case
of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435
(1972), and In Re: Beverly, 342 So. 2d 481 (Fla. 1977).

As to criteria for involuntary hospitalization, see chapter 394,
Florida Statutes, or, in the case of mental retardation, see chapter
393, Florida Statutes.

Section 394.467(1), Florida Statutes (1979), prescribes criteria
for involuntary hospitalization or placement. In case of mental
retardation, section 393.11, Florida Statutes (1979), governs.
(c) In most instances, the issues of incompetency at time of
trial and insanity at time of the offense will be raised at the same
time or, at least, in the same case. In the event that the 2 are not
raised in the same case, there would be no reason for the examining
experts to inquire into the mental status of the defendant at the
time of the offense itself at the incompetency examination. However,
if insanity as a defense is raised, it would be most appropriate for
judicial efficiency to have the examining experts inquire into all
issues at the same time. This provision permits such inquiry by the
experts in the event that notice of intent to rely on the defense of
insanity has been filed by the defendant.

(d) This provision is meant to permit local circuits to develop
their own forms for such reports if they feel that such forms are
appropriate. It does not preclude HRS from suggesting a form that
would be of particular assistance to them and requesting its
adoption, but adoption is not mandated.

(e) This subdivision provides for the confidentiality of the
information obtained by virtue of an examination of the defendant
pursuant to this subdivision. Cf. §90.108, Fla.Stat. (1979);
Fla.R.Civ.P. 1.330(6).

Section 916.12, Florida Statutes is a companion statute
relating to mental competence to stand trial.

1988 Amendment. Title. The title is amended to reflect
changes in rule 3.210.

(a) This subdivision, which was originally an introductory
paragraph, is amended to reflect changes in rule 3.210. The
deletions related to the extent of the evaluation and when and to
whom the experts’ reports are to be submitted have been placed in
rule 3.210(4) above.

(1) This subdivision, which was formerly subdivision (a), has
been amended to reflect changes in rule 3.210 above.

(2) This provision has been amended to reflect the changes
to rule 3.210. In addition, the 11 factors previously numbered (i)
through (xi) have been reduced to 6 factors. Numbers (v), (vi), (vii),
(x), and (xi) have been removed. Those 5 factors were felt to not be
directly related to the issue of a defendant having the mental
capacity to communicate with his or her attorney or to understand
the proceedings against him or her and may have had the effect of
confusing the issues the experts are to address in assessing a
defendant’s competency to proceed. The terms “ability” and
“capacity” which were used interchangeably in the prior version of
this provision have been changed to the single term “capacity” for
continuity. A provision has been added which allows the appointed
expert to also include any other factors deemed relevant to take into
account different techniques and points of view of the experts.

(b) This subdivision, including its 4 subdivisions, is
amended to reflect the changes in rule 3.210. It also expands the
determination from the limited area of whether an incompetent
defendant should be voluntarily committed to treatment to
recommended treatment options designed to restore or maintain
competence. Subdivision (v) has been deleted because consideration
of less restrictive alternatives is addressed in other amendments.
[See rule 3.212(c)(3)(iv).] The amendments further reflect 1985
legislative amendments to chapters 394 and 916, Florida Statutes.

(ii) Appropriate treatment may include maintaining the
defendant on psychotropic or other medication. See rule 3.215.

(c) This provision is amended to take into account the
defense of insanity both at trial and in violation of
probation/community control hearings.

(d) This provision deletes the old language relating to the use
of standardized forms. The new provision, with its 4 subdivisions,
outlines in detail what the written report of an expert is to include,
to ensure the appointed expert understands what issues are to be
addressed, and that the report identifies sources of information,
tests or evaluation techniques used, and includes the findings and
observations upon which the expert’s opinion is based. It requires
the expert to specify those issues on which the expert could not
render an opinion.
(e) This provision is amended to comply with changes in rule
3.210. In addition, the second paragraph has been expanded to
clarify under what circumstances the reports of experts in a
competency evaluation may be discovered by the prosecution and
used as evidence in a hearing other than the hearing on the issue of
a defendant’s competency to proceed.

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

Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.