Florida Rule of Criminal Procedure 3.212
RULE 3.212. COMPETENCE TO PROCEED: HEARING AND
DISPOSITION
(a) Admissibility of Evidence. The experts preparing the
reports may be called by either party or the court, and additional
evidence may be introduced by either party. The experts appointed
by the court are deemed court witnesses whether called by the
court or either party and may be examined as such by either party.
(b) Finding of Competence. The court must first consider
the issue of the defendant’s competence to proceed. If the court
finds the defendant competent to proceed, the court must enter its
order so finding and proceed.
(c) Commitment on Finding of Incompetence. If the court
finds the defendant is incompetent to proceed, or that the
defendant is competent to proceed but that the defendant’s
competence depends on the continuation of appropriate treatment
for a mental illness or intellectual disability, the court must
consider issues relating to treatment necessary to restore or
maintain the defendant’s competence to proceed.
(1) The court may order the defendant to undergo
treatment if the court finds that the defendant is mentally ill or
intellectually disabled and is in need of treatment and that
treatment appropriate for the defendant’s condition is available. If
the court finds that the defendant may be treated in the community
on bail or other release conditions, the court may make acceptance
of reasonable medical treatment a condition of continuing bail or
other release conditions.
(2) If the defendant is incarcerated, the court may order
treatment to be administered at the custodial facility or may order
the defendant transferred to another facility for treatment or may
commit the defendant as provided in subdivision (3).
(3) A defendant may be committed for treatment to
restore a defendant’s competence to proceed if the court finds that:
(A) the defendant meets the criteria for
commitment as set forth by statute;
(B) there is a substantial probability that the
mental illness or intellectual disability causing the defendant’s
incompetence will respond to treatment and that the defendant will
regain competency to proceed in the reasonably foreseeable future;
(C) treatment appropriate for restoration of the
defendant’s competence to proceed is available;
(D) no appropriate treatment alternative less
restrictive than that involving commitment is available; and
(E) other mental health services, treatment
services, support services, and case management services as
described in section 394.67, Florida Statutes, would be
inappropriate.
(4) If the court commits the defendant, the order of
commitment must contain:
(A) findings of fact relating to the issues of
competency and commitment addressing the factors set forth in
rule 3.211 when applicable;
(B) copies of the reports of the experts filed with
the court under the order of examination;
(C) copies of any other psychiatric, psychological,
or social work reports submitted to the court relative to the mental
state of the defendant; and
(D) copies of the charging instrument and all
supporting affidavits or other documents used in the determination
of probable cause.
(5) Before issuing a commitment order, the court must
review the examining expert’s report to ensure alternative treatment
options have been fully considered and found insufficient to meet
the needs of the defendant.
(6) The treatment facility must admit the defendant for
hospitalization and treatment and may retain and treat the
defendant. No later than 60 days from the date of admission, the
administrator of the facility must file with the court a report that
addresses the issues and considers the factors set forth in rule
3.211, with copies to all parties. If, at any time during the 60 day
period or during any period of extended commitment that may be
ordered under this rule, the administrator of the facility determines
that the defendant no longer meets the criteria for commitment or
has become competent to proceed, the administrator must notify
the court by such a report, with copies to all parties.
(A) If, during the 60 day period of commitment
and treatment or during any period of extended commitment that
may be ordered under this rule, counsel for the defendant must
have reasonable grounds to believe that the defendant is competent
to proceed or no longer meets the criteria for commitment, counsel
may move for a hearing on the issue of the defendant’s competence
or commitment. The motion must contain a certificate of counsel
that the motion is made in good faith and on reasonable grounds to
believe that the defendant is now competent to proceed or no longer
meets the criteria for commitment. To the extent that it does not
invade the attorney-client privilege, the motion must contain a
recital of the specific observations of and conversations with the
defendant that have formed the basis for the motion.
(B) If, on consideration of a motion filed by
counsel for the defendant or the prosecuting attorney and any
information offered the court in support thereof, the court has
reasonable grounds to believe that the defendant may have regained
competence to proceed or no longer meets the criteria for
commitment, the court must order the administrator of the facility
to report to the court on such issues, with copies to all parties, and
must order a hearing to be held on those issues.
(7) The court must hold a hearing within 30 days of the
receipt of the report from the administrator of the facility. If,
following the hearing, the court determines that the defendant
continues to be incompetent to proceed and that the defendant
meets the criteria for continued commitment or treatment, the court
must order continued commitment or treatment for a period not to
exceed 1 year. When the defendant is retained by the facility, the
same procedure must be repeated prior to the expiration of each
additional 1–year period of extended commitment.
(8) If, at any time after such commitment, the court
decides, after hearing, that the defendant is competent to proceed,
it shall enter its order so finding and shall proceed.
(9) If, after any such hearing, the court determines that
the defendant remains incompetent to proceed but no longer meets
the criteria for commitment, the court shall proceed as provided in
rule 3.212(d).
(d) Release on Finding of Incompetence. If the court
decides that a defendant is not mentally competent to proceed and
there is a substantial probability that the defendant will gain
competency to proceed in the foreseeable future, 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 must 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 General
Practice and Judicial Administration 2.420. If a defendant is found
to be mentally incompetent to proceed and there is no substantial
probability that the defendant will gain competency to proceed in
the foreseeable future, the defendant must be released, or the State
must initiate civil commitment proceedings.
Committee Notes
1980 Adoption. This rule sets forth the procedure for the
hearing itself. If other experts have been involved who were not
appointed pursuant to this rule, provision is made that such
experts may then be called by either party. Those experts appointed
by the court to conduct the examination, if called by the court or by
either party to testify at the hearing, will be regarded as court
experts. Either party may then examine such experts by leading
questions or may impeach such experts. If a party calls an expert
witness other than those appointed by the court pursuant to these
rules, the usual evidentiary rules of examining such witnesses shall
then apply. Following the hearing, the court may come to one of 3
conclusions: (a) the defendant is competent to stand trial, rule
3.212(a); (b) the defendant is incompetent to stand trial and is in
need of involuntary hospitalization, rule 3.212(b); or (c) the
defendant is incompetent to stand trial but is not in need of
involuntary hospitalization, rule 3.212(c).
(a) This provision has been contained in every prior rule or
statute relating to the issues of competency to stand trial and
provides that if the defendant is competent the trial shall
commence. No change is recommended.
(b) This subdivision provides for the second possible finding
of the court, namely that the defendant is found incompetent to
stand trial and is in need of involuntary hospitalization. It is
designed to track the provisions of chapter 394, Florida Statutes,
relating to involuntary hospitalization and the provisions of chapter
393 relating to residential services insofar as they may apply to the
defendant under criminal charges. In this way, the procedures to be
set up by the institution to which a criminal defendant is sent
should not vary greatly from procedures common to the institution
in the involuntary hospitalization or residential treatment of those
not subject to criminal charges.
The criteria for involuntary hospitalization are set forth in
section 394.467(1), Florida Statutes (1979). As to involuntary
hospitalization for mental retardation, see section 393.11, Florida
Statutes (1979); definition of treatment facility, see section 394.455,
Florida Statutes (1979); involuntary admission to residential
services, see section 393.11, Florida Statutes (1979).
(2) The requirement that there be certain contents to the
order of commitment is set forth in order to give greater assistance
to the personnel of the treatment facility. The information to be
included in the order should give them the benefit of all information
that has been before the trial judge and has been considered by
that judge in making the decision to involuntarily hospitalize the
defendant. This information should then assist the personnel of the
receiving institution in making their initial evaluation and in
instituting appropriate treatment more quickly. The last
requirement, that of supporting affidavits or other documents used
in the determination of probable cause, is to give some indication of
the nature of the offense to the examining doctors to enable them to
determine when the defendant has reached a level of improvement
that he or she can discuss the charge with “a reasonable degree of
rational understanding.”
(3) This subdivision is designed to correspond with a
complementary section of the Florida Statutes. It mandates, as does
the statute, that the treatment facility must admit the defendant for
hospitalization and treatment. The time limitations set forth in this
subdivision are designed to coincide with those set forth in chapter
394, Florida Statutes. If, however, the defendant should regain
competence or no longer meets hospitalization criteria prior to the
expiration of any of the time periods set, the administrator of the
facility may report to the court and cause a re-evaluation of the
defendant’s mental status. At the end of the 6–month period, and
every year thereafter, the administrator must report to the court.
These time periods are set forth so as to coincide with chapter 394,
Florida Statutes.
(i) Permits the defendant’s attorney, in an appropriate case,
to request a hearing if the attorney believes the defendant to have
regained competency. The grounds for such belief are to be
contained in the motion, as is a certificate of the good faith of
counsel in filing it. If the motion is sufficient to give the court
reasonable grounds to believe that the defendant may be competent
or no longer meets the criteria for hospitalization, the court can
order a report from the administrator and hold a hearing on the
issues.
(4) The rule is meant to mandate that the court hold a
hearing as quickly as possible, but the hearing must be held at
least within 30 days of the receipt of the report from the
administrator of the facility.
(c) This rule provides for the disposition of the defendant
who falls under the third of the alternatives listed above, that is,
one who is incompetent to stand trial but does not meet the
provisions for involuntary hospitalization. It is meant to provide as
great a flexibility as possible for the trial judge in handling such
defendant.
As to criteria for involuntary hospitalization, see section
394.467(1), Florida Statutes (1979).
Section 916.13, Florida Statutes complements this rule and
provides for the hospitalization of defendants adjudicated
incompetent to stand trial.
1988 Amendment. Title. The title has been amended to reflect
changes in rules 3.210 and 3.211.
(a) This provision was formerly the introductory paragraph
to this rule. It has been labeled subdivision (a) for consistency in
form.
(b) This provision was former subdivision (a). It has been
amended to reflect changes in rules 3.210 and 3.211. The former
subdivisions (b) and (b)(1) have been deleted because similar
language is now found in new subdivision (c).
(c) This new provision, including all its subdivisions, is
designed to reflect the commitment criteria in section 916.13(1),
Florida Statutes, and to reflect that commitment to the Department
of Health and Rehabilitative Services is to be tied to specific
commitment criteria when no less restrictive treatment alternative
is available.
(1) This provision provides for available community
treatment when appropriate.
(2) This provision provides for treatment in a custodial
facility or other available community residential program.
(3) This provision, and its subdivisions, outlines when a
defendant may be committed and refers to commitment criteria
under the provisions of section 916.13(1), Florida Statutes.
(4) This provision, and its subdivisions, was formerly
subdivision (b)(2). The language has been amended to reflect
changes in chapter 916 relating to the commitment of persons
found incompetent to proceed and changes in rules 3.210 and
3.211.
(5) This provision, and its subdivisions, was formerly
subdivision (b)(3). The amendments are for the same reasons as (4)
above.
(6) This provision was formerly subdivision (b)(4). The
amendments are for the same reasons as (4) above.
(7) This provision was formerly subdivision (b)(5). The
amendments are for the same reasons as (4) above.
(8) This provision was formerly subdivision (b)(6). The
amendments are for the same reasons as (4) above.
(d) The amendments to the provision are for the same
reasons as (4) above.
1992 Amendment. The amendments substitute “shall” in
place of “may” in subdivision (c)(5)(B) to require the trial court to
order the administrator of the facility where an incompetent
defendant has been committed to report to the court on the issue of
competency when the court has reasonable grounds to believe that
the defendant may have regained competence to proceed or no
longer meets the criteria for commitment. The amendments also
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.
DISPOSITION
(a) Admissibility of Evidence. The experts preparing the
reports may be called by either party or the court, and additional
evidence may be introduced by either party. The experts appointed
by the court are deemed court witnesses whether called by the
court or either party and may be examined as such by either party.
(b) Finding of Competence. The court must first consider
the issue of the defendant’s competence to proceed. If the court
finds the defendant competent to proceed, the court must enter its
order so finding and proceed.
(c) Commitment on Finding of Incompetence. If the court
finds the defendant is incompetent to proceed, or that the
defendant is competent to proceed but that the defendant’s
competence depends on the continuation of appropriate treatment
for a mental illness or intellectual disability, the court must
consider issues relating to treatment necessary to restore or
maintain the defendant’s competence to proceed.
(1) The court may order the defendant to undergo
treatment if the court finds that the defendant is mentally ill or
intellectually disabled and is in need of treatment and that
treatment appropriate for the defendant’s condition is available. If
the court finds that the defendant may be treated in the community
on bail or other release conditions, the court may make acceptance
of reasonable medical treatment a condition of continuing bail or
other release conditions.
(2) If the defendant is incarcerated, the court may order
treatment to be administered at the custodial facility or may order
the defendant transferred to another facility for treatment or may
commit the defendant as provided in subdivision (3).
(3) A defendant may be committed for treatment to
restore a defendant’s competence to proceed if the court finds that:
(A) the defendant meets the criteria for
commitment as set forth by statute;
(B) there is a substantial probability that the
mental illness or intellectual disability causing the defendant’s
incompetence will respond to treatment and that the defendant will
regain competency to proceed in the reasonably foreseeable future;
(C) treatment appropriate for restoration of the
defendant’s competence to proceed is available;
(D) no appropriate treatment alternative less
restrictive than that involving commitment is available; and
(E) other mental health services, treatment
services, support services, and case management services as
described in section 394.67, Florida Statutes, would be
inappropriate.
(4) If the court commits the defendant, the order of
commitment must contain:
(A) findings of fact relating to the issues of
competency and commitment addressing the factors set forth in
rule 3.211 when applicable;
(B) copies of the reports of the experts filed with
the court under the order of examination;
(C) copies of any other psychiatric, psychological,
or social work reports submitted to the court relative to the mental
state of the defendant; and
(D) copies of the charging instrument and all
supporting affidavits or other documents used in the determination
of probable cause.
(5) Before issuing a commitment order, the court must
review the examining expert’s report to ensure alternative treatment
options have been fully considered and found insufficient to meet
the needs of the defendant.
(6) The treatment facility must admit the defendant for
hospitalization and treatment and may retain and treat the
defendant. No later than 60 days from the date of admission, the
administrator of the facility must file with the court a report that
addresses the issues and considers the factors set forth in rule
3.211, with copies to all parties. If, at any time during the 60 day
period or during any period of extended commitment that may be
ordered under this rule, the administrator of the facility determines
that the defendant no longer meets the criteria for commitment or
has become competent to proceed, the administrator must notify
the court by such a report, with copies to all parties.
(A) If, during the 60 day period of commitment
and treatment or during any period of extended commitment that
may be ordered under this rule, counsel for the defendant must
have reasonable grounds to believe that the defendant is competent
to proceed or no longer meets the criteria for commitment, counsel
may move for a hearing on the issue of the defendant’s competence
or commitment. The motion must contain a certificate of counsel
that the motion is made in good faith and on reasonable grounds to
believe that the defendant is now competent to proceed or no longer
meets the criteria for commitment. To the extent that it does not
invade the attorney-client privilege, the motion must contain a
recital of the specific observations of and conversations with the
defendant that have formed the basis for the motion.
(B) If, on consideration of a motion filed by
counsel for the defendant or the prosecuting attorney and any
information offered the court in support thereof, the court has
reasonable grounds to believe that the defendant may have regained
competence to proceed or no longer meets the criteria for
commitment, the court must order the administrator of the facility
to report to the court on such issues, with copies to all parties, and
must order a hearing to be held on those issues.
(7) The court must hold a hearing within 30 days of the
receipt of the report from the administrator of the facility. If,
following the hearing, the court determines that the defendant
continues to be incompetent to proceed and that the defendant
meets the criteria for continued commitment or treatment, the court
must order continued commitment or treatment for a period not to
exceed 1 year. When the defendant is retained by the facility, the
same procedure must be repeated prior to the expiration of each
additional 1–year period of extended commitment.
(8) If, at any time after such commitment, the court
decides, after hearing, that the defendant is competent to proceed,
it shall enter its order so finding and shall proceed.
(9) If, after any such hearing, the court determines that
the defendant remains incompetent to proceed but no longer meets
the criteria for commitment, the court shall proceed as provided in
rule 3.212(d).
(d) Release on Finding of Incompetence. If the court
decides that a defendant is not mentally competent to proceed and
there is a substantial probability that the defendant will gain
competency to proceed in the foreseeable future, 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 must 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 General
Practice and Judicial Administration 2.420. If a defendant is found
to be mentally incompetent to proceed and there is no substantial
probability that the defendant will gain competency to proceed in
the foreseeable future, the defendant must be released, or the State
must initiate civil commitment proceedings.
Committee Notes
1980 Adoption. This rule sets forth the procedure for the
hearing itself. If other experts have been involved who were not
appointed pursuant to this rule, provision is made that such
experts may then be called by either party. Those experts appointed
by the court to conduct the examination, if called by the court or by
either party to testify at the hearing, will be regarded as court
experts. Either party may then examine such experts by leading
questions or may impeach such experts. If a party calls an expert
witness other than those appointed by the court pursuant to these
rules, the usual evidentiary rules of examining such witnesses shall
then apply. Following the hearing, the court may come to one of 3
conclusions: (a) the defendant is competent to stand trial, rule
3.212(a); (b) the defendant is incompetent to stand trial and is in
need of involuntary hospitalization, rule 3.212(b); or (c) the
defendant is incompetent to stand trial but is not in need of
involuntary hospitalization, rule 3.212(c).
(a) This provision has been contained in every prior rule or
statute relating to the issues of competency to stand trial and
provides that if the defendant is competent the trial shall
commence. No change is recommended.
(b) This subdivision provides for the second possible finding
of the court, namely that the defendant is found incompetent to
stand trial and is in need of involuntary hospitalization. It is
designed to track the provisions of chapter 394, Florida Statutes,
relating to involuntary hospitalization and the provisions of chapter
393 relating to residential services insofar as they may apply to the
defendant under criminal charges. In this way, the procedures to be
set up by the institution to which a criminal defendant is sent
should not vary greatly from procedures common to the institution
in the involuntary hospitalization or residential treatment of those
not subject to criminal charges.
The criteria for involuntary hospitalization are set forth in
section 394.467(1), Florida Statutes (1979). As to involuntary
hospitalization for mental retardation, see section 393.11, Florida
Statutes (1979); definition of treatment facility, see section 394.455,
Florida Statutes (1979); involuntary admission to residential
services, see section 393.11, Florida Statutes (1979).
(2) The requirement that there be certain contents to the
order of commitment is set forth in order to give greater assistance
to the personnel of the treatment facility. The information to be
included in the order should give them the benefit of all information
that has been before the trial judge and has been considered by
that judge in making the decision to involuntarily hospitalize the
defendant. This information should then assist the personnel of the
receiving institution in making their initial evaluation and in
instituting appropriate treatment more quickly. The last
requirement, that of supporting affidavits or other documents used
in the determination of probable cause, is to give some indication of
the nature of the offense to the examining doctors to enable them to
determine when the defendant has reached a level of improvement
that he or she can discuss the charge with “a reasonable degree of
rational understanding.”
(3) This subdivision is designed to correspond with a
complementary section of the Florida Statutes. It mandates, as does
the statute, that the treatment facility must admit the defendant for
hospitalization and treatment. The time limitations set forth in this
subdivision are designed to coincide with those set forth in chapter
394, Florida Statutes. If, however, the defendant should regain
competence or no longer meets hospitalization criteria prior to the
expiration of any of the time periods set, the administrator of the
facility may report to the court and cause a re-evaluation of the
defendant’s mental status. At the end of the 6–month period, and
every year thereafter, the administrator must report to the court.
These time periods are set forth so as to coincide with chapter 394,
Florida Statutes.
(i) Permits the defendant’s attorney, in an appropriate case,
to request a hearing if the attorney believes the defendant to have
regained competency. The grounds for such belief are to be
contained in the motion, as is a certificate of the good faith of
counsel in filing it. If the motion is sufficient to give the court
reasonable grounds to believe that the defendant may be competent
or no longer meets the criteria for hospitalization, the court can
order a report from the administrator and hold a hearing on the
issues.
(4) The rule is meant to mandate that the court hold a
hearing as quickly as possible, but the hearing must be held at
least within 30 days of the receipt of the report from the
administrator of the facility.
(c) This rule provides for the disposition of the defendant
who falls under the third of the alternatives listed above, that is,
one who is incompetent to stand trial but does not meet the
provisions for involuntary hospitalization. It is meant to provide as
great a flexibility as possible for the trial judge in handling such
defendant.
As to criteria for involuntary hospitalization, see section
394.467(1), Florida Statutes (1979).
Section 916.13, Florida Statutes complements this rule and
provides for the hospitalization of defendants adjudicated
incompetent to stand trial.
1988 Amendment. Title. The title has been amended to reflect
changes in rules 3.210 and 3.211.
(a) This provision was formerly the introductory paragraph
to this rule. It has been labeled subdivision (a) for consistency in
form.
(b) This provision was former subdivision (a). It has been
amended to reflect changes in rules 3.210 and 3.211. The former
subdivisions (b) and (b)(1) have been deleted because similar
language is now found in new subdivision (c).
(c) This new provision, including all its subdivisions, is
designed to reflect the commitment criteria in section 916.13(1),
Florida Statutes, and to reflect that commitment to the Department
of Health and Rehabilitative Services is to be tied to specific
commitment criteria when no less restrictive treatment alternative
is available.
(1) This provision provides for available community
treatment when appropriate.
(2) This provision provides for treatment in a custodial
facility or other available community residential program.
(3) This provision, and its subdivisions, outlines when a
defendant may be committed and refers to commitment criteria
under the provisions of section 916.13(1), Florida Statutes.
(4) This provision, and its subdivisions, was formerly
subdivision (b)(2). The language has been amended to reflect
changes in chapter 916 relating to the commitment of persons
found incompetent to proceed and changes in rules 3.210 and
3.211.
(5) This provision, and its subdivisions, was formerly
subdivision (b)(3). The amendments are for the same reasons as (4)
above.
(6) This provision was formerly subdivision (b)(4). The
amendments are for the same reasons as (4) above.
(7) This provision was formerly subdivision (b)(5). The
amendments are for the same reasons as (4) above.
(8) This provision was formerly subdivision (b)(6). The
amendments are for the same reasons as (4) above.
(d) The amendments to the provision are for the same
reasons as (4) above.
1992 Amendment. The amendments substitute “shall” in
place of “may” in subdivision (c)(5)(B) to require the trial court to
order the administrator of the facility where an incompetent
defendant has been committed to report to the court on the issue of
competency when the court has reasonable grounds to believe that
the defendant may have regained competence to proceed or no
longer meets the criteria for commitment. The amendments also
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.