The news reports wild crimes all the time. Sometimes people watch and wonder why a person would ever do such a crazy thing. Indeed, that guy must be nuts. Well….there’s a good chance he might be. Florida law calls this incompetence.

Basically, competency is the ability to rationally work with your lawyer. Florida defines competence in Florida Statute § 916.12 and sets out the procedure for filing the Motion for Examination. Competency matters because only competent people can participate in hearings. Thus, incompetent people cannot plea or go to trial. But what happens if a judge won’t address your client’s competence? The Fifth District Court of Appeal looks into this in King v. State.

How to Check if Your Client is Competent

If a lawyer reasonably thinks the client is incompetent, then Rule 3.210 lets a lawyer ask the judge for an examination. The judge should immediately set a hearing to determine the client’s mental condition. It should be held no later than 20 days after the motion is filed. Next, the judge will appoint two or three mental health experts to check the client. Of course, the Department of Corrections keeps a list of the approved doctors. These experts write reports for the judge and lawyers. If needed, they will testify at a hearing on the client’s competency.

What is Competency?

Rule 3.211 explains competence. Generally, experts look at whether the client appreciates the charges, appreciates the penalties, understands the process, shares facts with the lawyer, behaves nicely in court and testifies relevantly. If the person is competent, the expert reports this. If the person is incompetent, the doctor writes why. The report mentions the type of illness, treatments, whether the treatment is available, whether the treatment will work and how long it will take.

How is Competency Decided?

Under Rule 3.212, judges hold hearings to decide if someone is competent. The experts who met with the client testify to the judge. Then the judge rules based upon the evidence. If someone is found incompetent, then the judge enters an order to treat the client to restore competence. Sometimes, the parties agree to incompetence and there’s no need to hold a hearing.

How Long Does this Last?

Once the doctors restore the client, the case continues and the client participates as before. However, doctors can’t restore some clients. Under Rule 3.213, judges dismiss cases for incompetent clients. For misdemeanors, it takes 1 year. People with autism or intellectual disability require 2 years. Some crimes may be dismissed after 3 years. If a person remains incompetent for 5 continuous years, then the court shall dismiss a felony.

What if a Judge Won’t Rule?

In King, the lawyer filed a motion to have King evaluated. Unfortunately, the judge didn’t act. Therefore, the lawyer filed a Writ of Certiorari asking the appellate court to make the trial judge hold a hearing within 20 days. Check out my page on Appeals and Petitions to learn more about Writs of Certiorari. The Fifth District reads Rule 3.210, which says the hearing must be held within 20 days. Accordingly, the Fifth District issues an order making the judge hold the hearing within 20 days.

Read the King opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown to see if he can help you with your defense! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

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