RULE 8.095. PROCEDURE WHEN CHILD BELIEVED TO BE
INCOMPETENT OR INSANE

(a) Proceedings Barred During Incompetency. A child
accused of a delinquent act or violation of probation who is
mentally incompetent to proceed at any material stage of a
delinquency proceeding shall not be proceeded against while
incompetent. These proceedings shall be tolled upon the filing of a
motion or order pursuant to subdivision (b)(1) until a finding by the
court that the child is competent to proceed.

(b) Procedure for Children Believed to be Incompetent
During a Delinquency Proceeding.

(1) Motion and Order.

(A) Child’s Motion. A written motion for
examination of the child made by counsel for the child shall contain
a certificate of counsel that the motion is made in good faith and on
reasonable grounds to believe that the child is incompetent to
proceed. To the extent that it does not invade the lawyer-client
privilege, the motion shall contain a recital of the specific facts,
observations of and/or conversations with the child that have
formed the basis for the motion.

(B) State’s Motion. A written motion for
examination of the child made by counsel for the state shall contain
a certificate of counsel that the motion is made in good faith and on
reasonable grounds to believe the child is 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 child that have formed the basis for the
motion.

(C) Court Order. The court may on its own motion
order the child to be examined if the court believes the child is
incompetent to proceed. The order shall include a recitation of the
specific facts, including any observations or statements of the child
that the court believes are relevant to the issue of incompetency.


(2) Speedy Trial Tolled. Upon the filing of a motion
suggesting the child to be incompetent to proceed or upon an order
of the court finding a child incompetent to proceed, speedy trial
shall be tolled until a subsequent finding of the court that the child
is competent to proceed.

(3) Detention. This rule shall in no way be construed to
add any detention powers not provided by statute or case law.

(4) Setting Hearing. Upon the filing of a motion or order
pursuant to subdivision (b)(1), the court shall immediately stay the
proceedings and schedule a hearing as expeditiously as possible to
determine whether the child is competent.

(5) Expert Witness.

(A) Non-confidential Evaluation. When a question
has been raised concerning the competency of the child, the court
may on its own motion, and shall on motion of the state or the
child, appoint no more than 3, nor fewer than 2, disinterested,
qualified experts to examine the child as to the child’s competency.
Attorneys for the state and the child may be present at the
examination.

(B) Confidential Evaluation. When counsel has
reason to believe that the child may be incompetent to proceed,
counsel may retain a qualified expert to examine the child. The
expert shall report only to counsel for the child, and all matters
related to the expert fall under the lawyer-client privilege.

(C) Intellectual Disability or Autism Evaluation.
When counsel has reason to believe the child is incompetent to
proceed because of intellectual disability or autism, the court shall
order the Agency for Persons With Disabilities to examine the child
to determine if the child meets the definition of intellectual
disability or autism in section 393.063, Florida Statutes, and, if so,
whether the child is competent to proceed.

(6) Scope of Examination and Report. The experts shall
examine the child with respect to the issue of competence to
proceed as specified by the following factors:

(A) Criteria for Determining Competence. The
experts first shall consider factors related to whether the child
meets the criteria for competence to proceed; that is, whether the
child has sufficient present ability to consult with counsel with a
reasonable degree of rational understanding and whether the child
has a rational and factual understanding of the present
proceedings.

(B) Relevant Factors. In considering the
competence of the child to proceed, the examining experts shall
consider and include in their reports the child's capacity to:

(i) appreciate the charges or allegations
against the child;

(ii) appreciate the range and nature of
possible penalties that may be imposed in the proceedings against
the child, if applicable;
(iii) understand the adversary nature of the
legal process;

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

(v) display appropriate courtroom behavior;
and

(vi) testify relevantly.

The experts also may consider any other
factors they deem to be relevant.

(C) Written Report. Any report shall be in writing
and include a finding as to whether the child is competent or
incompetent to proceed and include the basis for the determination.
The report shall also:

(i) identify the specific matters referred for
evaluation;

(ii) describe the procedures, techniques, and
tests used in the examination and the purposes of each;

(iii) state the expert’s clinical observations,
opinions, 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; and

(iv) identify the sources of information used
by the expert and present the factual basis for the expert’s clinical
opinions.

(D) Treatment Recommendations. Any report
finding that a child is incompetent to proceed, must include any
recommended treatment for the child to attain competence to
proceed and a recommendation as to whether residential or
nonresidential treatment or training is required. In considering
issues related to treatment, the experts shall report on the
following:


(i) the mental illness, intellectual disability,
or mental age causing incompetence;

(ii) the treatment or education appropriate
for the mental illness or intellectual disability of the child and an
explanation of each of the possible treatment or education
alternatives, in order of recommendation;

(iii) the availability of acceptable treatment or
competency restoration training. If treatment or competency
restoration training is available in the community, the experts shall
so state in the report;

(iv) the likelihood of the child attaining
competence under the treatment or competency restoration training
recommended, an assessment of the probable duration of the
treatment required to restore competence, and the probability that
the child will attain competence to proceed in the foreseeable
future; and

(v) whether the child meets the criteria for
involuntary commitment to a secure facility pursuant to subdivision
(b)(8)(B).

(7) Competency Evidence.

(A) The information contained in any motion for
determination of competence to proceed or in any report filed under
this rule as it relates solely to the issue of competence to proceed,
and any information elicited during a hearing on competence to
proceed shall be used only for the purposes of the competency
hearing.

(B) The child waives this provision by using the
report, or any parts of it, in any proceeding for any other purpose. If
so waived, the disclosure or use of the report, or any portion of it,
shall be governed by the applicable rules of evidence and juvenile
procedure. If a part of a report is used by the child, the state may
request the production of any other portion that, in fairness, ought
to be considered.

(C) The appointment of experts by the court shall
not preclude the state or the child from calling other expert
witnesses to testify during a hearing on competency. Other
competent evidence may be introduced at the hearing.

(8) Competency Hearing.

(A) Competence to Proceed—Hearing.

(i) All determinations of competency must
be made at a hearing with findings of fact based on testimony, other
competent evidence, or stipulated evidence of the child’s mental
condition. The court must conduct the hearing in the presence of
the child unless the child’s appearance is waived and the court
finds the child’s presence is unnecessary to make the determination
of competency.

(ii) Any expert appointed by the court may be
called by either party or the court. The appointment of experts by
the court shall not preclude the state or the child from calling other
witnesses to testify at the competency hearing.

(iii) The moving party has the burden to
prove that the child is not competent to proceed. The standard of
proof shall be by a preponderance of the evidence.

(iv) The child is presumed competent to
proceed unless the child has been adjudicated incompetent in a
prior case before the court and competency has not been restored.

(B) Findings by the Court.
(i) If the court finds the child incompetent to
proceed, the court must also make a finding as to whether the child
is incompetent because of mental illness, intellectual disability,
autism, age, immaturity, or for any other reason specified by the
court.

a. After the court makes a finding as to
the reason of the incompetency, the court must determine whether
the child qualifies under subdivision (b)(8)(C) to be committed to the
Department of Children and Families for treatment or training.

b. If the court commits the child to the
Department of Children and Families, the court then must
determine whether the child meets the criteria for involuntary
commitment to a secure facility. The determination whether the
child meets the criteria for involuntary commitment to a secure
facility shall be made by clear and convincing evidence.

(ii) If the court finds the child competent to
proceed, the court shall enter a written order so finding and proceed
accordingly.

(C) Child Found Incompetent to Proceed because
of Mental Illness, Intellectual Disability, or Autism.

(i) If at the competency hearing the child is
found to be incompetent to proceed because of mental illness,
intellectual disability, or autism, the child must be adjudicated
incompetent to proceed. If the child is adjudicated incompetent and
the alleged delinquent act or violation of law is a felony, the child
must be committed to the Department of Children and Families for
treatment and competency restoration.

(ii) The court must also determine whether
the child meets the criteria for involuntary commitment to a secure
facility. A child may be placed in a secure facility or program if the
court makes a finding by clear and convincing evidence that:
a. the child is manifestly incapable of
surviving with the help of willing and responsible family or friends,
including available alternative services, and without treatment or
training the child is likely to either suffer from neglect or refuse to
care for himself or herself, and such neglect or refusal poses a real
and present threat of substantial harm to the child’s well-being; or

b. there is a substantial likelihood that
in the near future the child will inflict serious bodily harm on
himself or herself or others, as evidenced by recent behavior
causing, attempting, or threatening such harm; and

c. all available less restrictive
treatment alternatives, including treatment or training in
community residential facilities or community inpatient settings
which would offer an opportunity for improvement of the child’s
condition are inappropriate.

(D) Child Found Incompetent to Proceed because
of Age, Immaturity, or for Any Reason Other Than for Mental
Illness, Intellectual Disability, or Autism. A child who has been
adjudicated incompetent to proceed because of age or immaturity,
or for any reason other than for mental illness, intellectual
disability, or autism, cannot be committed to the Department of
Children and Families for treatment and competency restoration.

(E) Child Found Incompetent to Proceed Whose
Alleged Delinquent Act or Violation of Law is a Misdemeanor or
Municipal Ordinance. A child whose alleged delinquent act or
violation of law is a misdemeanor or municipal ordinance cannot be
committed to the Department of Children and Families for
treatment and competency restoration.

(9) Secure Placement.

(A) Each child who has been adjudicated
incompetent to proceed and who meets the criteria for involuntary
commitment to a secure facility in subdivision (b)(8) must be
committed to the Department of Children and Families. Any
commitment of a child to a secure residential program must be to a
program separate from adult forensic programs.

(B) A child adjudicated incompetent because of
mental illness may be ordered into a program designated by the
Department of Children and Families for mentally ill children.

(C) A child adjudicated incompetent because of
intellectual disability or autism may be ordered into a program
designated by the Department of Children and Families for
intellectually disabled or autistic children.

(D) The competency determination must be
reviewed by the service provider at least every 6 months, or any
time the child appears to have attained competency or will never
attain competency. The service provider must file a written report
evaluating the child’s competency and must provide copies to the
Department of Children and Families, the Department of Juvenile
Justice, the state, and counsel for the child.

(E) If a court determines a child to be competent,
case management and supervision of the child will be transferred to
the Department of Juvenile Justice to continue delinquency
proceedings. The court retains authority, however, to order the
Department of Children and Families to provide continued
treatment to maintain competency.

(10) Community Treatment.

(A) If a child who is found to be incompetent does
not meet the involuntary commitment to a secure facility criteria of
subdivision (b)(8)(B), the court shall order the Department of
Children and Families to provide appropriate treatment and
training in the community. All court-ordered treatment must be in
the least restrictive setting consistent with public safety. Any
treatment program must be separate from an adult treatment
program. If a child is ordered to receive such services, the services
shall be provided by the Department of Children and Families.
(B) The competency determination must be
reviewed by the service provider at least every 6 months, or any
time the child appears to have attained competency or will never
attain competency. The service provider must file a written report
evaluating the child’s competency and must provide copies to the
Department of Children and Families, the Department of Juvenile
Justice, the state, and counsel for the child.

(11) Competency Restoration Review. Not later than 6
months after the date of commitment, or at the end of any period of
extended treatment or competency restoration, or at any time the
service provider determines the child has attained competency or no
longer meets the criteria for involuntary commitment to a secure
facility, the service provider must file a report with the court and all
parties. Upon receipt of this report, the court shall set a hearing
within a reasonable time to determine the child’s competency. If the
child remains incompetent to proceed, the court shall determine
whether the child meets the criteria for commitment to a secure
facility.

(A) If the court determines the child to be
incompetent, the court shall order continued competency
restoration and training. A child may only be involuntarily
committed to a secure facility if the court finds the child meets the
criteria outlined in subdivision (b)(8)(B).

(B) If the court determines the child to be
competent, it shall enter an order so finding and proceed
accordingly.

(12) Continuing Jurisdiction and Dismissal of Jurisdiction.

(A) If a child is determined to be incompetent to
proceed, the court shall retain jurisdiction of the child for up to 2
years after the date of the order of incompetency. If the court
determines at any time that the child will never become competent
to proceed, the court may dismiss the case.
(B) If, at the end of the 2-year period following the
date of the order of incompetency, the child has not attained
competency and there is no evidence that the child will attain
competency within a year, the court must dismiss the case.

(C) If necessary, the court may order that
proceedings under chapter 393 or 394, Florida Statutes, be
instituted. Such proceedings must be instituted no less than 60
days before the dismissal of the delinquency petition. The juvenile
court may conduct all proceedings and make all determinations
under chapter 393 or 394, Florida Statutes.

(c) Procedure for Children Believed to be Insane at Time
of Delinquent Act or Violation of Probation.

(1) Expert to Aid Defense Counsel. When in any
delinquency case a child is adjudged indigent or partially indigent,
and is not represented by the public defender or regional counsel,
and counsel has reason to believe that the child may have been
insane at the time of the offense or probation violation, counsel may
so inform the court who shall appoint 1 expert to examine the child
in order to assist counsel in the preparation of the defense. The
expert shall report only to the attorney for the child and matters
related to the expert shall fall under the lawyer-client privilege.

(2) Notice of Intent to Rely on the Insanity Defense.
When in any delinquency case it shall be the intention of the child
to rely on the defense of insanity either at an adjudicatory hearing
or violation of probation hearing, no evidence offered by the child
for the purpose of establishing that defense shall be admitted in the
case unless advance notice in writing of the defense shall have been
given by the child as provided in this rule.

(3) Time for Filing Notice. The child shall give notice of
intent to rely on the defense of insanity not less than 10 days before
the adjudicatory hearing or violation of probation hearing and shall
provide the court with a statement of particulars showing as nearly
as possible the nature of the insanity expected to be proved and the
names and addresses of witnesses expected to prove it.
(4) Court Ordered Evaluations. On the filing of such
notice and on motion of the state, the court shall order the child to
be examined by the state’s mental health expert as to the sanity or
insanity of the child at the time of the alleged offense or probation
violation. Attorneys for the state and the child may be present at
the examination.

(5) Waiver of the Time to File. On good cause shown for
the omission of the notice of intent to rely on the defense of
insanity, or any mental health defense, the court may in its
discretion grant the child 10 days to comply with the notice
requirement. If leave is granted and the child files the notice, the
child is deemed unavailable to proceed. If the adjudicatory hearing
has already commenced, the court, only on motion of the child, may
declare a mistrial in order to permit the child to raise the defense of
insanity pursuant to this rule. Any motion for mistrial shall
constitute a waiver of the child’s right to any claim of former
jeopardy arising from the uncompleted trial.

(6) Speedy Trial. A continuance granted for this
purpose will toll speedy trial.

(7) Detention. This rule shall in no way be construed to
add any detention powers not provided by statute or case law.

(8) Experts. Once listed as a witness, any experts
appointed by the court may be summoned to testify at the
adjudicatory hearing or violation of probation hearing. Other
evidence regarding the child’s insanity or mental condition may be
introduced by either party. Each expert who has examined the child
under this section shall state his or her opinion regarding the
child’s sanity.

(9) Written Opinions of Experts. Any written report
submitted by the experts shall:

(A) identify the specific matters referred for
evaluation;
(B) describe the procedures, techniques, and tests
used in the examination and the purposes of each;

(C) state the expert’s clinical observations and
opinions as to the child’s mental status; and

(D) identify the sources of information used by the
expert and present the factual basis for the expert’s clinical
opinions.

(10) Burden. The child has the burden of proving the
defense of insanity by clear and convincing evidence. Insanity is
established when:

(A) The child had a mental infirmity, disease, or
defect; and

(B) Because of this condition, the child:

(i) Did not know what he or she was doing
or its consequences; or

(ii) Although the child knew what he or she
was doing and its consequences, the child did not know that what
he or she was doing was wrong.

(11) Procedures after Judgment of Not Guilty by Reason of
Insanity.

(A) When the child is found not guilty of the
delinquent act or violation of probation because of insanity, the
court shall enter such a finding and order.

(B) After finding the child not guilty by reason of
insanity, the court shall conduct a hearing to determine if the child
presently meets the statutory criteria for involuntary commitment
to a residential psychiatric facility as governed by the provisions of
chapters 985, 393 or 394. If the court determines that the required
criteria have been met, the child shall be committed by the juvenile
court to the Department of Children and Families for immediate
placement in a residential psychiatric facility.

(C) If the court determines that such commitment
criteria have not been established, the court shall order that the
child receive recommended and appropriate treatment at an
outpatient facility or service as governed by the provisions of
chapters 985, 393 or 394, unless the court determines that
treatment is not needed. If such a determination is made, the court
shall discharge the child.

(D) The requests for discharge or continued
involuntary hospitalization of the child shall be directed to the court
that committed the child.

(E) If a child is not committed to a residential
psychiatric facility and has been ordered to receive appropriate
treatment at an outpatient facility or service and it appears during
the course of the ordered treatment that treatment is not being
provided or that the child now meets the criteria for involuntary
commitment, the court shall conduct a hearing as governed by the
provisions of chapters 985, 393 or 394. If the court determines that
the child no longer requires treatment at an outpatient facility or
service, the court shall enter an order discharging the child.

(F) During the time the child is receiving
treatment, either by hospitalization or through an outpatient facility
or service, any party may request the court to conduct a hearing to
determine the nature, quality, and need for continued treatment.
The hearing shall be governed by the provisions of chapters 985,
393 or 394.

(G) No later than 30 days before reaching age 19,
a child still under supervision of the court under this rule shall be
afforded a hearing. At the hearing, a determination shall be made
as to the need for continued hospitalization or treatment. If the
court determines that continued care is appropriate, proceedings
shall be initiated under chapters 393 or 394, Florida Statutes. If the
court determines further care to be unnecessary, the court shall
discharge the child.
Committee Notes

2021 Amendment. The contact information for the
Department of Children and Families regarding restoration of
competency is: JITP Statewide Coordinator, Mental Health
Treatment Facilities, Department of Children and Families, 1317
Winewood Blvd., Bldg. 6, 3rd Floor, Tallahassee, FL 32399
SAMH.jitp@myflfamilies.com Office: 850-717-4333 Fax: 850-487-
1307.

F. HEARINGS