Florida Rule of Criminal Procedure 3.213
RULE 3.213. CONTINUING INCOMPETENCY TO PROCEED,
EXCEPT INCOMPETENCY TO PROCEED WITH
SENTENCING; DISPOSITION
(a) Dismissal without Prejudice during Continuing
Incompetency.
After a determination that a person is incompetent to stand
trial or proceed with a probation or community control violation
hearing, the charge(s):
(1) shall be dismissed 1 year after a finding if the
charge is a misdemeanor;
(2) shall be dismissed no later than 2 years after a
finding if incompetency is due to intellectual disability or autism;
(3) may be dismissed 3 years after a finding, unless a
charge is listed in section 916.145, Florida Statutes; or
(4) shall be dismissed after a finding that the defendant
has remained incompetent for 5 continuous and uninterrupted
years;
provided that the court finds that the defendant remains
incompetent to stand trial or proceed with a probation or
community control violation hearing unless the court in its order
specifies its reasons for believing that the defendant is expected to
become competent to proceed. A dismissal under this rule shall be
without prejudice to the state to refile the charge(s) should the
defendant be declared competent to proceed in the future.
(b) Commitment or Treatment during Continuing
Incompetency.
(1) If the defendant meets the criteria for commitment
under section 394.467, Florida Statutes, the court shall commit the
defendant to the Department of Children and Families for
involuntary hospitalization solely under the provisions of law. If the
defendant meets the criteria of section 394.4655, Florida Statutes,
the court may order that the defendant receive outpatient treatment
at any other facility or service on an outpatient basis subject to the
provisions of those statutes. In the order of commitment, the judge
shall order that the administrator of an inpatient facility notify the
state attorney of the committing circuit no less than 30 days prior
to the anticipated date of release of the defendant.
(2) If the continuing incompetency is due to intellectual
disability or autism, and the defendant either lacks the ability to
provide for his or her well-being or is likely to physically injure
himself or herself, or others, the defendant may be involuntarily
admitted to residential services as provided by law.
(c) Applicability. This rule shall not apply to defendants
determined to be incompetent to proceed with sentencing, which is
addressed in rule 3.214.
Committee Notes
1980 Adoption. As to involuntary hospitalization, see section
394.467(1), Florida Statutes (1979); as to involuntary admission to
residential services, see chapter 393, Florida Statutes (1979).
(b) This provision is meant to deal with the defendant who
remains incompetent after 5 years, and who does meet the criteria
for involuntary hospitalization. It provides that the criminal charges
will be dismissed and the defendant will be involuntarily
hospitalized. It further provides that the administrator of the facility
must notify the state attorney prior to any release of a defendant
committed pursuant to this subdivision.
As to criteria for involuntary hospitalization, see section
394.467(1), Florida Statutes (1979); in case of retardation, see
chapter 393, Florida Statutes (1979).
(c) Since commitment criteria for a defendant determined to
be incompetent to stand trial are the same as for civil
hospitalization, there is no need to continue the difference between
felony and misdemeanor procedure.
Section 916.14, Florida Statutes, makes the statute of
limitations and defense of former jeopardy inapplicable to criminal
charges dismissed because of incompetence of defendant to stand
trial.
1988 Amendment. Title. The title has been amended to
comply with changes in rule 3.210, but specifically excludes
competency to proceed with sentencing, which is addressed in the
new rule 3.214.
(a) This provision was amended to reflect changes in rules
3.210 and 3.211. New language is added which specifies that, if
charges are dismissed under this rule, it is without prejudice to the
state to refile if the defendant is declared competent to proceed in
the future. Similar language was previously found in rule 3.214(d),
but is more appropriate under this rule.
(b) This provision has been amended for the same reasons
as (a) above.
(c) This new provision specifically exempts this rule from
being used against a defendant determined to be incompetent to be
sentenced, which is now provided in the new rule 3.214. It is
replaced by the new rule 3.214.
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.
See notes following rule 3.210 for the text of this note.
EXCEPT INCOMPETENCY TO PROCEED WITH
SENTENCING; DISPOSITION
(a) Dismissal without Prejudice during Continuing
Incompetency.
After a determination that a person is incompetent to stand
trial or proceed with a probation or community control violation
hearing, the charge(s):
(1) shall be dismissed 1 year after a finding if the
charge is a misdemeanor;
(2) shall be dismissed no later than 2 years after a
finding if incompetency is due to intellectual disability or autism;
(3) may be dismissed 3 years after a finding, unless a
charge is listed in section 916.145, Florida Statutes; or
(4) shall be dismissed after a finding that the defendant
has remained incompetent for 5 continuous and uninterrupted
years;
provided that the court finds that the defendant remains
incompetent to stand trial or proceed with a probation or
community control violation hearing unless the court in its order
specifies its reasons for believing that the defendant is expected to
become competent to proceed. A dismissal under this rule shall be
without prejudice to the state to refile the charge(s) should the
defendant be declared competent to proceed in the future.
(b) Commitment or Treatment during Continuing
Incompetency.
(1) If the defendant meets the criteria for commitment
under section 394.467, Florida Statutes, the court shall commit the
defendant to the Department of Children and Families for
involuntary hospitalization solely under the provisions of law. If the
defendant meets the criteria of section 394.4655, Florida Statutes,
the court may order that the defendant receive outpatient treatment
at any other facility or service on an outpatient basis subject to the
provisions of those statutes. In the order of commitment, the judge
shall order that the administrator of an inpatient facility notify the
state attorney of the committing circuit no less than 30 days prior
to the anticipated date of release of the defendant.
(2) If the continuing incompetency is due to intellectual
disability or autism, and the defendant either lacks the ability to
provide for his or her well-being or is likely to physically injure
himself or herself, or others, the defendant may be involuntarily
admitted to residential services as provided by law.
(c) Applicability. This rule shall not apply to defendants
determined to be incompetent to proceed with sentencing, which is
addressed in rule 3.214.
Committee Notes
1980 Adoption. As to involuntary hospitalization, see section
394.467(1), Florida Statutes (1979); as to involuntary admission to
residential services, see chapter 393, Florida Statutes (1979).
(b) This provision is meant to deal with the defendant who
remains incompetent after 5 years, and who does meet the criteria
for involuntary hospitalization. It provides that the criminal charges
will be dismissed and the defendant will be involuntarily
hospitalized. It further provides that the administrator of the facility
must notify the state attorney prior to any release of a defendant
committed pursuant to this subdivision.
As to criteria for involuntary hospitalization, see section
394.467(1), Florida Statutes (1979); in case of retardation, see
chapter 393, Florida Statutes (1979).
(c) Since commitment criteria for a defendant determined to
be incompetent to stand trial are the same as for civil
hospitalization, there is no need to continue the difference between
felony and misdemeanor procedure.
Section 916.14, Florida Statutes, makes the statute of
limitations and defense of former jeopardy inapplicable to criminal
charges dismissed because of incompetence of defendant to stand
trial.
1988 Amendment. Title. The title has been amended to
comply with changes in rule 3.210, but specifically excludes
competency to proceed with sentencing, which is addressed in the
new rule 3.214.
(a) This provision was amended to reflect changes in rules
3.210 and 3.211. New language is added which specifies that, if
charges are dismissed under this rule, it is without prejudice to the
state to refile if the defendant is declared competent to proceed in
the future. Similar language was previously found in rule 3.214(d),
but is more appropriate under this rule.
(b) This provision has been amended for the same reasons
as (a) above.
(c) This new provision specifically exempts this rule from
being used against a defendant determined to be incompetent to be
sentenced, which is now provided in the new rule 3.214. It is
replaced by the new rule 3.214.
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.
See notes following rule 3.210 for the text of this note.