Florida/Georgia Personal Injury & Workers Compensation

...[7] Floridians' attitudes toward the mentally retarded have evolved significantly in recent decades. Those mentally retarded people committed to state care no longer are warehoused in "training centers," and a variety of procedural safeguards have been enacted to protect the rights of those committed to state facilities. See § 393.11, Fla....

...has not advanced the argument in this Court that the Florida Constitution provides greater due process protection than the United States Constitution. Accordingly, we do not address this question. [24] Chapter 393 is entitled "Developmental Disabilities." Section 393.11, Florida Statutes (Supp.1998), provides procedures for when "a person is mentally retarded and requires involuntary admission to residential services provided by the developmental services program" administered by the Department of Children and Families....

...spitalization 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)....

...Hadeed, Southern Legal Counsel, Inc., Gainesville, amicus curiae. ADKINS, Justice. This case is here for mandatory review of the decision of the Second District Court of Appeal in the case of Kinner v. State, 382 So.2d 756 (Fla. 2d DCA 1980). The district court found section 393.11, Florida Statutes (1977), unconstitutional....

...al services under the Retardation Prevention and Community Services Act. Appellee was discharged from the Florida State Hospital on April 20, 1978. On September 21, 1978, the trial court appointed an examining commission of local experts pursuant to section 393.11....

...A hearing followed at which appellee was committed to the Department of Health and Rehabilitative Services for treatment at a residential retardation facility. Appellee appealed under chapter 393, and for the first time challenged the constitutionality of section *1362 393.11. The Second District Court of Appeal based jurisdiction on fundamental error, and found section 393.11 unconstitutional for failure to provide criteria restricting involuntary commitment to those unable to weigh the risks of freedom and benefits of hospitalization, and to those dangerous to themselves and dangerous to others. Before we reach the two questions presented for review we must determine whether the matter is moot, and whether it should be decided in view of the amendment of section 393.11 by chapter 80-174, section 3, Laws of Florida, and in view of Mr....

...ll affect a significant number of retarded citizens who are presently institutionalized as a result of the application of the predecessor statute. We now turn to the two issues presented by this appeal: 1) Whether the district court erred by finding section 393.11 unconstitutional because of insufficient standards restricting involuntary commitment, and 2) Whether appellee's commitment under section 393.11 was supported by the evidence. As to the first issue, appellant says that section 393.11 [1] must be read in conjunction *1363 with the definitional portion of the statute, specifically section 393.063(22), Florida Statutes (1977)....

...ersed. It is so ordered. BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur. ENGLAND, J., dissents with an opinion with which SUNDBERG, C.J., concurs. ENGLAND, Justice, dissenting. I disagree completely with the majority's pronouncement that sections 393.11 and 393.063(22), when read together, provide minimally-required standards and safeguards for an involuntary commitment of the mentally retarded....

...*1364 The state argues that these provisions "implicitly" require a finding of dangerousness to the committed individual or to others. I simply cannot find that implied safeguard in either section 393.063(22), which defines retardation in terms of intelligence and adaptive behavior, or in section 393.11, which requires involuntary commitment to residential services and thereby, allegedly, indicates an inability to function "at large". I would affirm the careful decision of the district court. SUNDBERG, C.J., concurs. NOTES [1] § 393.11, Fla. Stat. (1977), provides in pertinent part: 393.11 Hearing and order for involuntary admission to residential services; recommendation of examining commission....

...the criminal process must end and the State must pursue other options if necessary to secure the safety of the defendant or others. See, e.g., § 916.303(2) (providing for post-dismissal determinations of whether involuntary services are necessary); § 393.11, Fla....

...ntly in recent decades. Those mentally retarded people committed to state care no longer are warehoused in "training centers," and a variety of procedural safeguards have been enacted to protect the rights of those committed to state facilities. See § 393.11, Fla.Stat....

...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....

...italization or residential treatment of those not subject to criminal charges. The criteria for involuntary hospitalization isare 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 chaptersection 394.455, Florida Statutes (1979); involuntary admission to residential services, see section 393.11, Florida Statutes (1979)....

...At the motion hearing, the director for a residential program for developmentally disabled adults testified that if the trial court dismissed Petitioner's pending criminal charge, the Agency for Persons with Disabilities would seek to have Petitioner involuntarily admitted under section 393.11, Florida Statutes (2002)....

...legislative branch. See M.F., 583 So.2d at 1386. When charges are dismissed against a mentally retarded defendant such as Petitioner, the State or the defendant's attorney may seek to involuntarily commit the defendant under certain conditions. See § 393.11, Fla....

...The petition for certiorari is GRANTED and we remand with instructions to the trial court to dismiss the pending criminal charge without prejudice to the State to refile criminal charges. On remand, the trial court shall allow Petitioner to be involuntarily admitted to residential services under section 393.11, Florida Statutes, (2002), or such other appropriate action as the court may determine....

...ccessor to the Department of Children and Family Services), bringing a facial challenge to the constitutionality of Florida’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services, Florida Statutes § 393.11. The Agency for Persons with Disabilities (APD) is responsible for administering these residential services in Florida. 1 The District Court granted summary judgment to the APD, and it is that ruling that J.R. appeals to this Court. J.R. says that § 393.11 violates the Due Process Clause of the 14th Amendment on its face because it creates an impermissibly high risk of wrongful deprivations of liberty....

...authority to release them. 2 Specifically, no one disputes that the circuit court that issues the initial involuntary admission order retains jurisdiction over the order of commitment, and that a person may only be released by further circuit court order. See Fla. Stat. § 393.11(11)....

...It is not statutorily required to do so. See id. The District Court, however, employed the doctrine of constitutional avoidance to find that the statutory scheme provided constitutionally sufficient process largely on the basis of its finding that § 393.11 “places an implicit burden on APD, rather than the client, to petition the [admitting] court for release from an order of involuntary admission when the conditions for release are indicated.” The District Court certainly recognized that “section 393.11 contains no provision expressly describing APD’s responsibilities should the time come when a developmentally disabled client no longer satisfies the involuntary admission requirements.” However, the court explained that the sta...

...o longer deemed to be a danger to himself or others.” At oral argument before our Court, the APD repeatedly asserted that though the statute does not explicitly say so, it 2 Notably, J.R. does not argue that the initial admission process under § 393.11 is constitutionally deficient. 3  Case: 12-14212 Date Filed: 08/20/2013 Page: 4 of 29 has an obligation to periodically review the propriety of continued involuntary admission and petition the court if necessary....

...to offer the state court the opportunity to explicate state law.” Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996). 4  Case: 12-14212 Date Filed: 08/20/2013 Page: 5 of 29 Florida Statutes § 393.11 governs Florida’s “[i]nvoluntary admission to residential services” scheme for intellectually disabled persons and explains that: If a person has an intellectual disability and requires involuntary admission to residenti...

...court of the county in which the person resides has jurisdiction to conduct a hearing and enter an order involuntarily admitting the person in order for the person to receive the care, treatment, habilitation, and rehabilitation that the person needs. Fla. Stat. § 393.11(1). Upon petition or motion filed in Florida state circuit court by a petition committee, the APD, the state attorney, or counsel for the person needing services, see id. §§ 393.11(2), 916.303(2), the court appoints a committee to examine the person’s intellectual abilities. Id. § 393.11(5). The circuit court then holds an adversarial hearing, where the person is entitled to representation by counsel and can examine witnesses. See id. § 393.11(6), (7). The circuit court may not involuntarily admit the person unless it finds that: 1....

...’s well-being; or b. Is likely to physically injure others if allowed to remain at liberty. 5  Case: 12-14212 Date Filed: 08/20/2013 Page: 6 of 29 Id. § 393.11(8)(b) (emphasis added).4 Within 45 days of receiving the order, the APD must provide the circuit court with a copy of a “support plan” for its client, outlining a treatment plan and showing “that the person has been placed in the most appropriate, least restrictive and cost-beneficial residential setting.” Id. § 393.11(8)(e). “Support plans” are governed by section 393.0651 and apply to all APD clients in non-secure residential services without reference to voluntary or involuntary admission....

...on a client’s progress in achieving support plan objectives. Id. § 393.0651(7). As we have said, the Florida circuit court that makes the first involuntary admission decision retains jurisdiction over the order and it cannot be changed 4 Section 393.11 does not specify whether the residential services are “secure” or “non-secure.” However, Florida Statutes § 916.303(3) allows the court to place a person in a secure facility, rather than a community placement, under a different admission standard and subject to more robust annual review. Compare Fla. Stat. § 916.303(3) with id. § 393.11. This being the case, the parties and the District Court below have all described § 393.11 as concerned with involuntary admission to non-secure residential settings, and we will do the same. 5 A support plan may call for varying degrees of restrictive settings from a developmental disabilities center (most restrictive) to even the client’s own home. See Fla. Stat. § 393.0651(5). 6  Case: 12-14212 Date Filed: 08/20/2013 Page: 7 of 29 without permission from that court. See id. § 393.11(11)....

...Florida law does not require the court to perform an adversarial, state-initiated, periodic review of a client who has been involuntarily admitted to services in a non-secure setting. Compare id. § 916.303(3) (review for secure settings) with id. § 393.11 (admission to residential services)....

...Rather, upon issuance of the involuntary admission order, the client is notified in writing that he or she may challenge that order by way of a habeas petition submitted to the circuit court, the only body with power to ever change the order. Id. § 393.11(13). II....

...Date Filed: 08/20/2013 Page: 8 of 29 involuntarily committed him to the Department of Children and Family Services (DCF), a precursor to the APD. In 2004, J.R. was involuntarily admitted to “non- secure” residential services, pursuant to § 393.11....

...§ 393.063(37). 9  Case: 12-14212 Date Filed: 08/20/2013 Page: 10 of 29 constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). As the District Court explained, “[b]y its plain language, [§ 393.11] makes loss of liberty a necessary concomitant to involuntary admission to residential services.” See also Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809 (1979) (recognizing that “civil commitment for any purpose constitutes a significant deprivation of liberty”); Kinner v. State, 382 So. 2d 756, 760 (Fla. 2d DCA 1980) (describing § 393.11 as providing for the deprivation of liberty), rev’d on other grounds, 398 So. 2d 1360 (Fla. 1981). Thus, as the APD concedes, the first two elements of the test for a claim of the denial of due process are easily established here. The question left for us to answer is whether § 393.11 provides constitutionally adequate process. A....

...the answer to that question would be aided by the statutory interpretation of the Supreme Court of Florida, the ultimate arbiter of Florida law. See Forgione 93 F.3d at 761. A. Arguments J.R. argues that § 393.11 does not pass constitutional muster because it does not entitle involuntarily admitted persons to periodic review of the propriety of continued commitment “by a decision maker that has authority to release them from commitment.” Thus, J.R....

...c review of support plans designed to find the “most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives for 8 The APD argues that “the facts of J.R.’s case undermine his challenge to section 393.11” because “[he] does not allege that it would even be appropriate to release him from his involuntary admission to services.” In other words, the APD suggests that because “J.R.’s counsel has never asserted that J.R....

...validity of the statute because for the past nine years he has been subjected to an involuntary admission order. He has been deemed as lacking the ability to live on his own because doing so would either risk the threat of physical harm to himself or to others. See Fla. Stat. § 393.11(8)(b)....

...der of involuntary admission” (emphasis added). Second, the APD argues that the availability of habeas corpus and the fact that upon an order of involuntary admission a person is notified in writing of the availability of habeas, see Fla. Stat. § 393.11(13), is sufficient to protect against an erroneous deprivation of liberty....

...That is the entire point of these services.” Thus the APD argued it was clear that the statute calls for periodic review of J.R.’s continued involuntary admission to residential services. 9 In summary, the APD argues that finding that the process laid out in § 393.11 does not provide constitutionally sufficient procedures amounts to this 9 The APD also alludes to the argument that J.R....

...community-based residential services.” As the District Court pointed out, “[b]y its plain language, the statute makes loss of liberty a necessary concomitant to involuntary admission to residential services,” and Florida courts have interpreted §393.11 as doing so....

...habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being” or would leave the person “likely to physically injure others if allowed to remain at liberty.” Id. § 393.11(8)(b)....

...ng.” Conceivably, J.R. could continue to make progress with respect to his vocational and social skills by remaining in some form of residential services long after he is no longer a danger to himself or others.11 Thus the regime established in § 393.11 11 Also, we do not read the statute to equate “medical necessity” with the client of APD being a danger to himself or others....

...Nothing on the face of § 393.0651 mandates that the APD, having found a client to no longer be a danger to himself or to others, should petition the circuit court, the only body with the power to alter the order. See Fla. Stat. § 393.0651; id. § 393.11(11). In contrast, there are a few specific instances in which the statute does call for an involuntary admission order to non-secure residential services to be reviewed by the court. Section 393.115, “Discharge,” specifies that where a minor is involuntarily admitted to residential services, upon the client reaching the age of majority, “the [APD] shall file a petition to determine the appropriateness of continued residential placement on an involuntary basis. . . . in the court having continuing jurisdiction over the case.” Id. § 393.115(1)(b). And § 393.11(9)(b) others....

...ed: 08/20/2013 Page: 26 of 29 explains that “[a]ny minor involuntarily admitted to residential services shall, upon reaching majority, be given a hearing to determine the continued appropriateness of his or her involuntary admission.” Id. § 393.11(9)(b)....

...tutes reviewed in Parham and Williams, the District Court, employing the doctrine of constitutional avoidance, did find that the statute contained plausible implied obligations. The District Court explained, in pertinent part: While section 393.11 contains no provision expressly describing APD’s responsibilities should the time come when a developmentally disabled client no longer satisfies the involuntary admission requirements, the statute can and should be...

...1) Does “support plan” review under Fla. Stat. § 393.0651 require the Agency for Persons with Disabilities to consider the propriety of a continued involuntary admission to residential services order entered under Fla. Stat. § 393.11? 28  Case: 12-14212 Date Filed: 08/20/2013 Page: 29 of 29 2) Is the Agency for Persons with Disabilities required, pursuant to Fla. Stat. § 393.0651 and/or Fla. Stat. § 393.11, to petition the circuit court for the release from an involuntary admission order in cases where the APD determines that the circumstances that led to the initial admission order have changed? 3) Does Fla....

...§ 393.062; J.R. II, 2015 WL 2236760, at *4. The chapter gives the Agency for Persons with Disabilities (APD) authority to provide both voluntary and involuntary treatment. Fla. Stat. §§ 393.063(1), .065, .11; J.R. II, 2015 WL 2236760, at *4. Section 393.11 governs the involuntary 2  Case: 12-14212 Date Filed: 10/15/2015 Page: 3 of 22 admission of people who are intellectually disabled to non-secure residential...

...tarily admitting the person in order for the person to receive the care, treatment, habilitation, and rehabilitation that the person needs. 2 A state circuit court may involuntarily admit a person only if, after a hearing, see § 393.11(7), it makes three findings relevant here: (1) the person is intellectually disabled; (2) a residential setting is the least restrictive and most appropriate way to meet the person’s needs; and (3) the person is likely to injure himself or others if not admitted, § 393.11(8)(b). 3 1 “Residential facilities” “provid[e] room and board and personal care for persons who have developmental disabilities.” Fla. Stat. § 393.063(28). 2 Section 393.11 does not specify whether the residential facilities are “secure” or “non- secure.” But a separate statute not relevant here, Fla. Stat. § 916.303(3), contemplates placement in secure facilities under different admission standards. Compare id. (referring to “secure” facilities), with § 393.11 (mentioning neither “secure” nor “non-secure”). The parties and the District Court have assumed that § 393.11 concerns admission to non-secure facilities, so we do the same. 3 This general description in text suffices for our purposes....

...3  Case: 12-14212 Date Filed: 10/15/2015 Page: 4 of 22 Shortly after a person is admitted, the APD must give a “support plan” to the circuit court that ordered admission. § 393.11(8)(e)....

...10/15/2015 Page: 5 of 22 Importantly, the circuit court that first orders a person involuntarily admitted keeps jurisdiction over the admission order, and the admitted person “may not be released . . . except by order of the court.” § 393.11(11)....

...And the court is never required to review a continuing involuntary admission. Compare Fla. Stat. § 916.303(3) (mandating that admissions to a secure facility, which are not at issue here, “must be reviewed by the court at least annually at a hearing”), with § 393.11 (containing no similar requirement); see also J.R. II, 2015 WL 2236760, at *9. A person who is involuntarily admitted under § 393.11 thus has little recourse to challenge the admission....

...If he disagrees with his support plan, he may challenge it in an administrative proceeding, § 393.0651(8), but the administrator cannot change or vacate the order of involuntary admission or order release. As we have said, only the circuit court can do that. § 393.11(11); see also J.R....

...The only avenue for relief from the order of admission is by way of habeas corpus: an involuntarily admitted person may challenge the admission order by filing a habeas corpus petition with the circuit court that signed the order in the first instance. § 393.11(13); J.R....

...The Lee County Circuit Court found J.R. incompetent to stand trial and involuntarily admitted him to the Department of Children and Family Services (the precursor to the APD, J.R. II, 2015 WL 2236760, at *1 n.1). In 2004 J.R. was involuntarily admitted to non-secure residential services under § 393.11....

...t without periodic review by a decision-maker with authority to order release. 9 On cross motions for summary judgment, the District Court held that the statutory scheme was constitutional. It rested its holding largely on its belief that § 393.11, properly interpreted, contains an implicit requirement that if a committed person no longer meets the admission criteria, the APD must petition the circuit court to order release....

...Because the Florida Supreme Court “is unquestionably the ultimate expositor of [Florida] law,” Riley v. Kennedy, 553 U.S. 406, 425, 128 S. Ct. 1970, 1985 (2008) (alteration adopted) (quotation omitted), we are bound by its conclusive interpretation of § 393.11. II....

...liberty or property interest; (2) state action; and (3) constitutionally[] inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). The APD concedes that the first two elements of the procedural due process inquiry are met here. The question for us is whether § 393.11 provides constitutionally adequate process. A....

...just explained, is required. See Parham, 442 U.S. at 607, 99 S. Ct. at 2506. C. Application With these guiding principles in mind, our task is to determine whether Florida’s scheme provides constitutionally adequate process. We conclude that it does not. Section 393.11 is constitutionally infirm because it does not require periodic review of continued involuntary commitment by a decision-maker with 17  Case: 12-14212 Date Filed: 10/15/...

...elease. Such a scheme runs afoul of Mathews, Parham, and Williams, and is unconstitutional on its face. The APD offers several responses that it says undermine this conclusion, but none persuades us. First, at oral argument it insisted that § 393.11 contains “implied” review obligations....

...understanding. The supreme arbiter of Florida law has told us in no uncertain terms that the statutory scheme contains no such implied obligations. J.R. II, 2015 WL 2236760, at *8 (holding that the APD “is not required under either section 393.0651 or section 393.11 ....

...For that reason, it says, support-plan review necessarily considers whether to release a committed person. We cannot agree, because the support-plan review process does not consider both admission criteria. To initially admit a person under § 393.11, a circuit court must find both (1) that “[p]lacement in a residential setting is the least restrictive and most appropriate alternative to meet the person’s needs” and (2) that the person “lacks basic survival and self-care skil...

...supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being” or would leave the person “likely to physically injure others if allowed to remain at liberty.” § 393.11(8)(b)....

...So a committed person may cease to meet this second criterion but languish under continued commitment because the support plan does not address it. Take J.R. himself. We have no occasion to question whether he was dangerous at the time of his admission under § 393.11....

...ers and his lack of rehabilitation. We conclude it was sufficient to sustain the lower court's order. We reject Kimbrough's analogy to Baker Act proceedings. He cites several cases dealing with proceedings under section 394.467 Florida Statutes, not section 393.11....

...requires evidence proving a "substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm." (Emphasis added). Section 393.11(8)(b)3.b., on the other hand, only requires proof that the person is "likely to physically injure others if *337 allowed to remain at liberty." (Emphasis added)....

...abilities, Tallahassee, and Albert J. Hadeed, Southern Legal Counsel, Inc., Gainesville, amicus curiae. BOARDMAN, Acting Chief Judge. Billy Lee Kinner appeals an order of the circuit court involuntarily committing him for hospitalization pursuant to Section 393.11, Florida Statutes (1977). Appellant challenges the constitutionality of Section 393.11 for the first time on this appeal. [1] We agree that Section 393.11 is unconstitutional and reverse....

...Fundamental error has been defined as error "which goes to the foundation of the case or goes to the merits of the cause of action." Id. at 137; Clark v. State, 336 So.2d 468 (Fla.2d DCA 1976), aff'd, 363 So.2d 331 (Fla. 1978). Appellant challenges the constitutionality of Section 393.11 on the ground that it does not provide standards for involuntary hospitalization of a mentally retarded person which comport with due process. Such a defect would clearly go to the foundation of the case. Consequently, we may consider the issue on this appeal. The pertinent portions of the challenged statute are as follows: 393.11 Hearing and order for involuntary admission to residential services; recommendation of examining commission....

...er Chapter 393, Florida Statutes (1977), the Retardation Prevention & Community Services Act. Appellant was discharged from the Florida State Hospital on April 20, 1978. The trial court appointed an examining commission of local experts, pursuant to Section 393.11, by order filed September 21, 1978. A hearing was subsequently held, at the conclusion of which appellant was committed to the Department of Health and Rehabilitative Services (HRS) for treatment at a residential retardation facility. Appellant contends that Section 393.11 is unconstitutional on its face because it does not provide specific criteria which must be met before a mentally retarded person can be involuntarily hospitalized....

...ing commission finds the examined person to be retarded or developmentally disabled and in need of treatment and rehabilitation within residential services of the retardation program of the department, these findings shall be reported to the court." Section 393.11(2)(e)....

...715, 92 S.Ct. *760 1845, 32 L.Ed.2d 435 (1972). Commitment of retarded persons is in many respects analogous to commitment of mentally ill individuals, and we think the mentally retarded are as deserving of due process protection as the mentally ill. Section 393.11 does not contain any standards providing due process protection. Even assuming the language "in need of treatment and rehabilitation," was intended to be the criterion for involuntary hospitalization in Section 393.11, this language is almost identical to the language "[i]n need of care" found inadequate to provide protection in Beverly....

...oppressive upon individuals. Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). The protection of the public from dangerous persons is a compelling interest which would justify use of the police power by the state. [3] Section 393.11 in its present form is not a proper exercise of either the state's parens patriae power or its police power because, as we have indicated, the statute includes no criteria limiting persons who may be involuntarily committed to those who lack the capacity to weigh for themselves the risks of freedom and the benefits of hospitalization and/or to those who are dangerous to themselves or others. Consequently, we hold that Section 393.11, Florida Statutes (1977) is unconstitutional....

...ental Retardation for over two years and that there is no substantial probability that he will regain mental competency to participate in these legal proceedings in the foreseeable future." Consequently, the court committed Mr. Everette, pursuant to section 393.11, Florida Statutes, "to the Department of Children and Families for secure Residential Placement and appropriate services for a period of time that shall not exceed the maximum sentence for the crime for which he was charged." (emphasis added)....

...Everette (Case No. 3D04-2324). The Court subsequently entered an Order to Comply with the Order to Transport (Case No. 3D04-2366). The Department seeks a writ of certiorari from both Orders. Although Everette was involuntarily committed pursuant to section 393.11, Florida Statutes, which does not provide any guidance regarding transportation of the "client," we find that section 916.107(10), Florida Statutes, governs the transportation issue in the instant case....

...ent under the provisions of this chapter. § 916.105(1), Fla. Stat. (2003)(emphasis added). In the instant case, the trial court dismissed Everette's criminal case pursuant to section 916.145, Florida Statutes (1996), committed Everette, pursuant to section 393.11, Florida Statutes, to the Department, and retained jurisdiction over Everette....

...ropped and the client is involuntarily admitted to retardation residential services, the placement at the secure facility may be continued if so ordered by the committing court following a hearing with the same due process requirements as set out in s. 393.11 for an initial involuntary admission." § 916.13(b), Fla....

...Currently, section 916.303, Florida Statutes (2003), provides that if charges against an incompetent defendant are dismissed, the department, the state attorney, or the defendant's attorney may ask the trial court to involuntarily commit the defendant pursuant to section 393.11, Florida Statutes....

...FACTUAL BACKGROUND Respondent David Everette was charged with attempted first degree murder in 1994. After he was found not competent, his charges were dismissed in 1996 and he was involuntarily committed to a secure residential setting pursuant to section 393.11, Florida Statutes (1996)....

...ty sheriff transport Everette. We have not been provided with any transcripts. On August 25, 2004, the department filed a written motion to transfer jurisdiction over this matter to the Fourteenth Judicial Circuit. This motion was filed "pursuant to section 393.11(11), Florida Statutes (2004)." The trial court promptly denied the motion....

...ince 1996, when the state dismissed the criminal charges pending against him. Chapter 916 applies to criminal defendants. Everette is no longer a criminal defendant. He is a person who is mentally retarded who was involuntarily committed pursuant to section 393.11, Florida Statutes (1996). The department recognized this in its motion of August 25th when it sought to transfer his case to the Fourteenth Circuit. These commitments are civil, not forensic. The department has cited nothing in chapter 393, nor a careful reading of section 393.11 reveals any provision, governing the transportation of persons involuntarily admitted to residential services....

...he rights of the least powerful in our legal system, the incompetent. Clearly, the circuit court had continuing jurisdiction "to enter further orders to ensure that the person is receiving adequate care, treatment, habilitation, and rehabilitation." § 393.11(11), Fla....

...t" when it well knows that he has not been a defendant for almost eight years. It also states that the December 18, 1996 order "involuntarily committed defendant to a secure, forensic residential setting pursuant to § 916.145, Fla. Stat. (1996) and § 393.11, Fla. Stat. (1996)." In its order, however, the court clearly states that pursuant to section 393.11, Florida Statutes, Everette's commitment to a "Developmental Service residential setting [was] necessary." The court further ordered Everette's commitment to a "secure Residential Placement." As will be seen later, these are important distinctions. [2] This statute repeatedly refers to "residential services" under section 393.11....

rights of those committed to state facilities. See § 393.11, Fla.Stat. (1991) (regulating involuntary admission

...too stale to be relevant to an adjudication of incompetency. In In re Commitment of Drayton, 27 So.3d 243, 245 (Fla. 2d DCA 2010), the court ruled that “experts’ observations dating back to 2003” used in an involuntary commitment hearing under section 393.11(8), Florida Statutes (2007) in 2007 and 2008 were not “competent substantial evidence,” citing Reilly....

...(1)If the Court decides that a defendant charged with a felony is not mentally competent to stand trial or be sentenced, and meets the criteria for involuntary hospitalization set forth in Section 394.467(1), Florida Statutes (1975) (or, in the case of mental retardation, Section 393.11), Florida Statutes (1975), it shall order the defendant to be transferred to a treatment facility as defined in Chapter 394, Florida Statutes (1975) (or residential services as set forth in Section 393.11), Florida Statutes (1975) or may order that he receive outpatient treatment at any other appropriate facility or service on an involuntary basis....

...(2) If the Court decides that a defendant charged with a felony is not mentally competent to stand trial or be sentenced, but does not meet the criteria for involuntary hospitalization set forth' in Section 394.-467(1), Florida Statutes (1975), (or is not mentally retarded under Section 393.11, Florida Statutes (1975)), the defendant may be released on reasonable bail or on other appropriate release conditions for a period not to exceed one year....

...The division shall assign the person to an appropriate residential program as it may deem proper. By rules and regulations, the division shall also provide for the transfer of such persons between residential facilities or services." (Emphasis supplied) Subsection (1) of Section 393.11, Florida Statutes, states as follows: "(1) When a person is retarded and requires involuntary admission to residential services provided by the division of retardation, the circuit court of the county in which the person resides shall...

...n shall be the responsibility of the Division until the individual is discharged or released to the custody of parent or guardian and that the Division shall assign the person to an appropriate residential program as it may deem proper. The statute [Section 393.11(2)(e), supra] provides that the order of involuntary admission to residential care shall be accompanied by the report of the examining commission and copies of any other records that may be required by the Division....

...571; Nolan v. Moore, 81 Fla. 594, 88 So. 601; Dutch v. Palm Beach Bridge Dist., 84 Fla. 504, 94 So. 155; State ex rel. Claar v. Branning, 85 Fla. 61, 95 So. 237; Kennedy v. City of Daytona Beach, 132 Fla. 675, 182 So. 228." Paragraph (e) of Subsection (2) of Section 393.11 quoted above provides that "[u]pon receiving the orders and records, the division shall inform the court of the availability of services for the person." If the legislature had intended that the court in its order direct appellant to p...

...smissed the charges against Everette. Additionally, because of his inability to care for himself and the possible threat to himself or others if he was permitted to remain at liberty, the trial court involuntarily *272 committed Everette pursuant to section 393.11 of the Florida Statutes, Florida's civil commitment statute, which permits an involuntary admission to residential services when: Because of the person's degree of mental retardation or autism, the person: a....

...sion and habilitation in a residential setting is necessary, and, if not provided, would result in a real and present threat of substantial harm to the person's well-being; or b. Is likely to physically injure others if allowed to remain at liberty. § 393.11(8)(b)(3), Fla....

...rette to a non-secure residential setting. On August 2, 2004, the court issued an order appointing two experts to evaluate Everette "to determine whether the defendant continues to meet the criteria for involuntary residential services (Fl. Statutes 393.11) and, if so, whether the defendant still requires placement in a secure facility because he is likely to physically injure others." At a hearing held the same day, the trial court orally ordered DCF to be responsible for coordinating Everette's transport to and from these evaluations....

...sportation is to be coordinated by the sheriff according to the dictates of section 916.107(10), Florida Statutes (2004). Everette countered that he is not a forensic client under chapter 916 because he was civilly committed pursuant to section *273 393.11 subsequent to the dismissal of the criminal charges against him....

...anded the matter to the trial court with directions that the trial court order the county sheriff to arrange any transport deemed necessary. See Everette, 911 So.2d at 121. The district court reasoned that although Everette was committed pursuant to section 393.11, after the dismissal of the criminal charges against him, his placement in a secure facility was pursuant to chapter 916, and, therefore, he was a forensic client under section 916.106(7), Florida Statutes (2004) and his transport was governed by section 916.107(10)....

...916, Fla. Stat. (2006). As noted by Judge Ramirez below, Everette has not been a criminal defendant since December 18, 1996, when the criminal charges against him were dismissed and he was involuntarily committed to residential services pursuant to section 393.11 of the Florida Statutes....

...l disabilities. See ch. 393, Fla. Stat. (2004). It appears to me that a mentally retarded person who has not engaged in any conduct which produces criminal charges and who is in need of residential services would be committed under this chapter. See § 393.11, Fla....

...ally injure himself or herself or *276 others if allowed to remain at liberty, the department, the state attorney, or the defendant's attorney may apply to the committing court to involuntarily admit the defendant to residential services pursuant to s. 393.11. § 916.303(2)(a), Fla. Stat. (2004). Section 916.303(2)(b) provides: If the defendant is considered to need involuntary residential services under s. 393.11 and, further, there is a substantial likelihood that the defendant will injure another person or continues to present a danger of escape, and all available less restrictive alternatives . . . have been judged to be inappropriate, then the person or entity filing the petition under s. 393.11, the state attorney, the defendant's counsel, the petitioning commission, or the department may also petition the committing court to continue the defendant's placement in a secure facility or program pursuant to this section....

...[3] The plain language of section 916.303(2)(b) seems to only apply to the continuation of secure placement. Chapter 393 does not even mention secure placement, and, therefore, it appears that section 916.303(2)(b) does not apply to a person originally committed under section 393.11....

...Specifically, the Eleventh Circuit certified the following questions: 1) Does “support plan” review under Fla. Stat. § 393.0651 require the Agency for Persons with Disabilities to consider the propriety of a continued involuntary admission to residential services order entered under Fla. Stat. § 393.11? 2) Is the Agency for Persons with Disabilities required, pursuant to Fla. Stat. § 393.0651 and/or Fla. Stat. § 393.11, to petition the circuit  court for the release from an involuntary admission order in cases where the APD determines that the circumstances that led to the initial admission have changed? 3) Does Fla....

...In 2001, the circuit court concluded that J.R. was incompetent to stand trial and involuntarily committed him to the Department of Children and Family Services.1,2 In 2004, J.R. was involuntarily admitted to nonsecure residential services under section 393.11, Florida Statutes....

...Section 1988 governs proceedings in vindication of civil rights and provides for prevailing party attorney’s fees for section 1983 claims. J.R. sought a declaratory judgment that Florida’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services under section 393.11, Florida Statutes, is facially unconstitutional....

...interest; (2) state action; and (3) constitutionally-inadequate process.” Id. at *7. The court concluded that the first two elements—deprivation of a constitutionally protected liberty interest and state action—were “easily proved.” Id. at *7-8. However, after analyzing section 393.11 in light of Mathews v....

...584 (1979), and Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984), the court determined that the third element— constitutionally inadequate process—was not established. J.R. I, 2012 WL 1886438 at *13. As a result, the district court concluded that section 393.11, Florida Statutes, is constitutional. Id. at *15. The court explained: Here, the Florida Legislature has fashioned what, in essence, is a nonadversarial scheme that (1) allows section 393.11 clients and their family members or advocates to provide input into the development and annual revision of support plans that detail “the most appropriate, least restrictive, and most cost-beneficial environment for...

...After explaining the elements of a claim brought under section 1983, the Eleventh Circuit concluded that “the first two elements of the test for a claim of the denial of due process are easily established here.” J.R. II, 736 F.3d at 965. The Eleventh Circuit then addressed whether section “393.11 provides constitutionally adequate process” regarding review of involuntary admission orders....

...admission orders. Id. at 971. Section 393.0651 does not explicitly require the Agency to periodically review involuntary admission orders to determine whether an admitted person continues to meet the standard for involuntary admission set out in section 393.11....

...o alter the order.” Id. The court pointed out that other sections in chapter 393 require judicial review of “an involuntary admission order to non-secure residential services” under specific circumstances involving minors. Id. (discussing §§ 393.11(9)(b), 393.115, Fla....

...lorida Statutes (2011), does not require the Agency to consider the continued propriety of an involuntary admission order. J.R. then argues that the second certified question should be answered in the negative because neither section 393.0651 nor section 393.11 requires the Agency to petition the circuit court for an individual’s release from an involuntary admission order when the circumstances that led to the initial involuntary admission have changed....

...orders in accordance with Parham and Williams. -8-  The Agency argues that each of the certified questions should be answered in the affirmative because the obligations implicit in sections 393.0651 and 393.11 require the Agency to review the continued propriety of an initial involuntary admission order during annual support plan review and petition the circuit court if an individual’s circumstances have changed to the point that involuntary admission is no longer appropriate. The Agency maintains that support plan review provides the necessary meaningful periodic review. The Agency further contends that this Court is required to interpret sections 393.0651 and 393.11 in a way that upholds their constitutionality. APPLICABLE LAW Chapter 393, Florida Statutes (2011), addresses the treatment of developmentally disabled individuals....

...A “client” of the Agency is “any person determined eligible by the agency for services under this chapter.” § 393.063(5), Fla. Stat. (2011). The Agency provides both voluntary and involuntary services to persons with developmental disabilities. See §§ 393.065, 393.11, Fla. Stat. (2011). Section 393.11 governs the involuntary admission of developmentally disabled individuals to residential services....

...ntial setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being; or b. Is likely to physically injure others if allowed to remain at liberty. § 393.11(8)(b), Fla....

...and copies of all examinations and evaluations, outlining the treatment and rehabilitative programs. The agency shall document that the person has been placed in the most appropriate, least restrictive and cost-beneficial residential setting.” § 393.11(8)(e), Fla....

...jurisdiction to the court where a client resides if it is different from where the original involuntary admission order was issued. A person may not be released from an order for involuntary admission to residential services except by the order of the court. § 393.11(11), Fla. Stat. (2011). An involuntary admission order may be appealed by “[a]ny party to the proceeding who is affected by an order of the court, - 10 - including the agency.” § 393.11(12), Fla. Stat. (2011). In addition, an involuntarily admitted person may file a petition for a writ of habeas corpus “to question the cause, legality, and appropriateness of the person’s involuntary admission” at any time. § 393.11(13), Fla....

...2d 176, 185 (Fla. 2007); Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000). Olmstead v. FTC, 44 So. 3d 76, 82 (Fla. 2010). We reject the Agency’s argument that we are required to find the implied obligations in sections 393.0651 and 393.11 because we must interpret the statutes in a way that upholds their constitutionality. Certified questions one and two ask us to interpret the provisions of section 393.0651 and 393.11 in order to assist the Eleventh Circuit in resolving this case. Certified questions one and two do not ask us to resolve the ultimate issue in this case—whether section 393.11 is facially unconstitutional....

...We answer the Eleventh Circuit’s first certified question in the negative because support plan review under section 393.0651 does not require the Agency to consider the continued propriety of an involuntary admission order entered under section 393.11....

...client’s annual support plan review. See J.R. II, 736 F.3d at 971. Nothing within the text of section 393.0651 can be construed to include consideration of the elements that must be established in order for a person to be involuntarily committed under section 393.11(8)(b). Nor can section 393.0651 be - 14 - construed to include consideration of whether a client is a danger to himself or others to satisfy the third element for involuntary admission in section 393.11(8)(b)3....

...nd most cost-beneficial environment for accomplishment of the objectives for client progress and a specification of all services authorized” does not take into account the continued appropriateness of an involuntary admission order. The text of section 393.11(8)(b)2, which sets forth the second element that must be found by a circuit judge in order for a person to be involuntarily admitted, substantially overlaps with the requirement regarding support plan review relied on by the Agency�...

...communities, and permit them to be diverted or removed from unnecessary institutional placements. The legislative purpose fails to address continued review of the appropriateness of an involuntary admission order because it does not take into account section 393.11(8)(b)3, which requires finding that an individual would be a danger to himself or others if he is allowed to remain at liberty....

...- 16 -  Accordingly, we answer the first certified question in the negative because support plan review under section 393.0651 does not require the Agency to consider the continued propriety of an involuntary admission order entered under section 393.11. Circuit Court Release from Involuntary Admission We next answer the Eleventh Circuit’s second certified question in the negative because the Agency is not required under either section 393.0651 or section 393.11, Florida Statutes, to petition the circuit court for a person’s release from an involuntary admission order in cases where the Agency determines that the circumstances that led to the initial admission order have changed. Neither section 393.0651 nor section 393.11 can be construed to impose an implicit obligation on the Agency to petition the circuit court for a person’s release from an involuntary admission order when the Agency determines that the circumstances that led to the initial admission order have changed. Section 393.11(11) does not indicate who may petition the circuit court for a person’s release from an involuntary admission; however, other subsections of section 393.11 explicitly provide for two circumstances for challenging involuntary admission orders. First, section 393.11(13) explicitly permits an involuntarily admitted person to petition the circuit court for a writ of habeas corpus to challenge the appropriateness of his involuntary admission. Second, - 17 - section 393.11(9)(b) explicitly provides that “[a]ny minor involuntarily admitted to residential services shall, upon reaching majority, be given a hearing to determine the continued appropriateness of his or her involuntary admission.” Section 393.115(1)(b) builds on the procedure for dealing with minors in residential services upon reaching the age of majority. It provides that in the case of a voluntarily admitted minor turning eighteen, “[i]f the resident appears to meet the criteria for involuntary admission to residential services, as defined in s. 393.11, the agency shall file a petition to determine the appropriateness of continued residential placement on an involuntary basis.” § 393.115(1)(b), Fla....

...(2011). As such, the Legislature explicitly provided for the Agency to file a petition with the circuit court to determine the appropriateness of involuntary admission in the case of a voluntarily admitted minor turning eighteen. The Legislature, however, did not include a provision in section 393.11 regarding the Agency filing a petition with the circuit court under any circumstances. Instead, section 393.11 provides one reference to a petition being filed with the circuit court—the involuntarily admitted person’s right to file a petition for a writ of habeas corpus challenging an involuntary admission order contained in section 393.11(13). Further, section 393.11 provides for one circumstance—a minor reaching the age of majority—in which an involuntarily admitted person is entitled to a review hearing. Nothing in section 393.11 - 18 - indicates that the Agency has an obligation to file a petition with the circuit court for any reason. Because requiring the Agency to file a petition with the circuit court would impose an obligation on the Agency to undertake a specific act not required by statute, finding an implied obligation within section 393.11 that requires the Agency to file a petition based on an involuntary admission order no longer being appropriate would modify the express terms of an unambiguous statute. Similarly, section 393.0651 does not contain any provi...

...However, a successful administrative challenge to a support plan would presumably lead to a revised support plan rather than a petition being filed by the Agency with the appropriate circuit court for the client’s release. While neither section 393.0651 nor section 393.11 mentions who may petition the circuit court for review of an involuntary admission order when a client’s circumstances change, other provisions of Florida law specifically address the periodic judicial review of various types of i...

...petition the circuit court for the release from an involuntary admission order would modify the express terms of an unambiguous statute. Accordingly, we answer the second certified question in the negative because nothing in either section 393.0651 or section 393.11 can be construed to impose an implicit obligation on the Agency to petition the circuit court for a person’s release from an involuntary admission order when the Agency determines that the circumstances that led to the initial adm...

...Recognizing these aspects of the statutory scheme is simply acknowledging the plain import of the statute. Failing to recognize them results from a cramped, unreasonable reading of the statutory text. The view that the legislative purpose set forth in section 393.0651 “does not take into account section 393.11(8)(b)3, which requires finding that an individual would be a danger to himself or others if he is allowed to remain at liberty[,]” majority op....

...The various provisions of chapter 393 therefore must be read harmoniously in light of the whole chapter. Finally, the duty of the Agency under section 393.0651 is in no way circumscribed by the statutory provisions related to judicial review of involuntary admissions when a client reaches the age of majority, see § 393.115, Fla. Stat. (2011), or the provisions authorizing an involuntarily admitted person to petition for release, see § 393.11(13), Fla....

or placement. In case of mental retardation, section 393.11, Florida Statutes (1979), governs. (c). In

CRENSHAW, Judge. Dreek Drayton appeals the order for his involuntary commitment to the Agency for Persons with Disabilities (APD) entered pursuant to section 393.11(8), Florida Statutes (2007)....

...2 In July 2007, the trial court entered an order for Drayton’s temporary commitment to secure placement with APD, stating that commitment was contingent upon the filing and resolution of an involuntary admission petition filed pursuant to sections 916.303 and 393.11, Florida Statutes (2006)....

...e examining committee and or competency evaluations previously done.” . We note that upon receiving APD’s petition for Drayton’s involuntary admission, the trial court did not appoint three disinterested experts to evaluate Drayton pursuant to section 393.11(5), Florida Statutes (2007).

...suant to section 916.303(2) and section 916.3025, Florida Statutes (2014). The State also requested the appointment of an examining committee to determine whether Tillman met the criteria for involuntary admission to residential services pursuant to section 393.11, Florida Statutes (2014), and section 916.303(2)....

...urt of the county in which the person resides has jurisdiction to conduct a hearing and enter an order involuntarily admitting the person in order for the person to receive the care, treatment, habilitation, and rehabilitation that the person needs. § 393.11(1), Fla. Stat. (2014). Involuntary admission to residential services can be *309 initiated by either a petition filed by a petitioning commission under section 393.11(2), or by a motion ñled by APD, the state attorney, or by counsel for the person needing services....

...hysically injure himself or herself or others if allowed to remain at liberty, the agency, the state attorney, or the defendant’s attorney shall apply to the committing court to involuntarily admit the defendant to residential services pursuant to s. 393.11....

...Upon receiving such a petition or motion, the circuit court is required by statute to appoint an examining committee comprised of “at least three disinterested experts who have demonstrated to the court an expertise in the diagnosis, evaluation, and treatment of persons who have intellectual disabilities.” § 393.11(5)(b), Fla. Stat. After examining the person being considered for involuntary admission, the committee must file a written report with the court “explicitly document[ing] the extent that the person meets the criteria for involuntary admission.” § 393.11(5)(e), Fla. Stat. Once the committee’s written report is filed, a hearing for involuntary admission must be conducted pursuant to section 393.11(7), which specifies: (a) The hearing for involuntary admission shall be conducted, and the order shall be entered, in the county in which the petition is filed....

...The burden of proof shall be on the party alleging the appropriateness of the person’s admission to residential services. The burden of proof shall be by clear and convincing evidence. (h) All stages of each proceeding shall be stenographically reported. § 393.11(7), Fla....

...ion and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being; or b. Is likely to physically injure others if allowed to remain at liberty. § 393.11(8)(b), Fla. Stat. (2014). Based on our review of the record, the examining committee did not evaluate Tillman or submit a report as required by Florida statutes. Further, the trial court did not conduct an evidentiary hearing pursuant to section 393.11(7) before issuing its order of commitment....

...These reports, which the trial court orders adopt, recommend that the respondents Ronald Simon, Nancy Reid and Angel Navarro be involuntarily admitted, as being developmentally disabled by virtue of being mentally retarded, to residential services provided by HRS pursuant to Section 393.11, Florida Statutes (1985)....

...This issue, we think, is a question for the legislature, not the courts, to resolve. We are equally unpersuaded by the remaining contentions of HRS. In particular, we reject the argument that HRS’ statutory obligation to “inform the court of all available services for the person” under Section 393.11(3)(e), Florida Statutes (1985), in any way confers party status on HRS in proceedings of this nature....

...3d DCA 2004), we granted certio-rari and quashed an order requiring the Department of Children and Families (“DCF”) to transport Everett from his residential facility in Marianna, Florida to Miami, Florida for court-appointed expert evaluations that were mandated by statute. In Everette , we noted that section 393.11, Florida Statutes, under which Everett as well as Respondent herein were involuntarily committed, did not provide any guidance as to who was responsible for an individual’s transportation....

...Accordingly, we held that the trial court departed from the essential requirements of the law in ordering DCF to transport Everett. Id. In this case, we deal with a court-ordered transportation of an individual committed to residential placement under section 393.11, Florida Statutes (2005), for a purpose that is not mandated by any statute or rule. As such, Petitioner argues that agency decisions concerning the transportation of individuals who are receiving residential services under section 393.11 constitute executive agency decisions which implicate determinations regarding the prioritizing of its funds. Petitioner maintains that these are matters not assigned to the judiciary to resolve. See Dep’t of Children & Family Servs. v. I.C., 742 So.2d 401, 404 (Fla. 4th DCA 1999). *457 Nevertheless, Respondent cites to section 393.11(11) in support of his claim that the trial court acted within its authority. Section 393.11(11) provides, in pertinent part: CONTINUING JURISDICTION....

...services under this section shall have continuing jurisdiction to enter further orders to ensure that the person is receiving adequate care, treatment, habil-itation, and rehabilitation, including psychotropic medication and behavioral programming. § 393.11(11), Fla....

...g psychotropic medication and behavioral programming.” However, the record in this case is devoid of any evidence or finding that the transportation of Respondent for a family visitation would address, much less serve, any of these purposes. While section 393.11(11) affords continuing jurisdiction to the trial court, the statute also expressly limits the matters over which this continuing jurisdiction may be exercised....