Search
  • Michael M. Stover

Competency Proceedings - A Procedural Guide.

Updated: Jan 9, 2020

This guide will show you how to initiate, solidify, and manage the procedural side of competency proceedings.

Initiating a Criminal Competency Proceeding.

First, an individual may be found incompetent if based on either mental disability or intellectual disability the defendant does not have the present ability to [1] Appreciate the charges or allegations against him; [2] Appreciate the range and nature of possible penalties, if applicable, which may be imposed in the proceedings against him; [3] Understand the adversary nature of the legal process; [4] Disclose to his attorney facts pertinent to the proceedings at issue; [5] Manifest appropriate courtroom behavior; and [6] Testify relevantly.


The issue of incompetence may only be raised at a material part stage of a criminal proceeding, which is not very restrictive. “material stage of a criminal proceeding” shall include the trial of the case, pretrial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, violation of probation or violation of community control proceedings, sentencing, hearings on issues regarding a defendant's failure to comply with court orders or conditions, or other matters where the mental competence of the defendant is necessary for a just resolution of the issues being considered. Fla. Stat. 916.01.

“Before you file a motion, it's beneficial to have an independent examination by a doctor”

The first step in initiating competency proceedings is filing a motion. However, before you file a motion, it may behoove you to have your client examined by a doctor to quell any concern the court may have of unjust motives for raising the issue. If you don't know what that means ask one of your criminal law attorney friends.


The court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition (Fla. Stat. 916.12.)

a. The hearing shall be held no later than 20 days after the date of the filing of the motion.

b. The Court may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing. Attorneys for the state and the defendant may be present at any examination ordered by the court.


A written motion for the examination made by counsel for the defendant shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant 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 observations of and conversations with the defendant that have formed the basis for the motion. If the defendant has been released on bail or other release provision, the court may order the defendant to appear at a designated place for evaluation at a specific time as a condition.


Next Comes the Court.

Once the Court is satisfied that one of the issues enumerated in section one exists,

  1. identify the purpose or purposes of the evaluation, including the nature of the material proceeding, and specify the area or areas of inquiry that should be addressed by the evaluator;

  2. specify the legal criteria to be applied; and

  3. specify the date by which the report should be submitted and to whom the report should be submitted. Fla. R. Crim. P. 3.210.


b.  To the extent possible, the appointed experts shall have completed forensic evaluator training approved by the department, and each shall be a psychiatrist, licensed psychologist, or physician.

c.  The department shall maintain and annually provide the courts with a list of available mental health professionals who have completed the approved training as experts.

d. The court shall pay for any expert that it appoints by court order, upon motion of counsel for the defendant or the state or upon its own motion.

1. If the defense or the state retains an expert and waives the confidentiality of the expert’s report, the court may pay for no more than two additional experts appointed by court order.

e. An expert retained by the defendant who is represented by private counsel appointed under s. 27.5303 shall be paid by the Justice Administrative Commission.

f. An expert retained by a defendant who is indigent for costs as determined by the court and who is represented by private counsel shall be paid by the Justice administrative Commission.

g. State employees shall be reimbursed for expenses pursuant to s. 112.061.

h. The fees shall be taxed as costs in the case.

i. In order for an expert to be paid for the services rendered, the expert’s report and testimony must explicitly address each of the factors and follow the procedures set out in this chapter and in the Florida Rules of Criminal Procedure.


Determinations needed to make a finding.

In order to determine whether or not a criminally accused meets competency standards in the State of Florida, Mental health experts are appointed pursuant to Fla. Stat § 916.115 to first determine whether the defendant has a mental illness and, if so, consider the factors related to the issue of whether the defendant meets the criteria for competence to proceed as described in subsection (1).

A defendant must be evaluated by no fewer than two experts before the court commits the defendant or takes other action authorized by this chapter or the Florida Rules of Criminal Procedure, except if one expert finds that the defendant is incompetent to proceed and the parties stipulate to that finding, the court may commit the defendant or take other action authorized by this chapter or the rules without further evaluation or hearing, or the court may appoint no more than two additional experts to evaluate the defendant.

There will be a new vein of caselaw forthcoming regarding release of a Defendant regardless of time elapsed since incompetence that is beginning in the Second D.C.A I do not have enough information to know the potential implications. I don’t believe caselaw has come out regarding such.


Competence and Amnesia.

To be competent, a defendant must have the present ability to consult with his attorney with a reasonable degree of rational understanding and have a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Pridgen v. State, 531 So.2d 951 (Fla.1988).


In State v. Cooks, 642 So. 2d 23, 23 (Fla. 5th DCA 1994) the Court Ruled a defendant must have the present ability to consult with his attorney with a reasonable degree of rational understanding and have a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Pridgen v. State, 531 So.2d 951 (Fla.1988).


In Cooks, Sub judice, two experts examined the Defendant and reached contrary conclusions regarding the Defendant's competency. The expert who concluded that the Defendant was incompetent to proceed cited not only the fact of the Defendant's amnesia stemming from the gunshot wound to the Defendant's brain, but also the severe damage to the Defendant's cognitive functioning had made it such that he did not have a factual understanding of the proceedings against him nor could he consult with his attorney with any degree of rational understanding. a defendant must have the present ability to consult with his attorney with a reasonable degree of rational understanding and have a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 (1960); Pridgen v. State, 531 So.2d 951 (Fla.1988). This expert supported his conclusion with reference to specific observations he made during his examination of the Defendant. In short, there was sufficient competent evidence from which the trial court could properly conclude that the Defendant was not competent to proceed. State v. Cooks, 642 So. 2d 23, 23–24 (Fla. 5th DCA 1994).


The question remains the same can the Defendant rationally meet and aid his Defense and Defense Counsel and does he know what charges are being brought against him, and understand the facts relating to those charges with a reasonable degree of certainty. Case law does not indicate whether or not amnesia falls under mental disability or intellectual disability. It is clearly mental disability based on the fact that it is related to injury.


Additional resources provided by the author:

Dusky v. United States, 362 U.S. 402, 80 (1960).

Pridgen v. State, 531 So.2d 951 (Fla.1988).

State v. Cooks, 642 So. 2d 23, 23–24 (Fla. 5th DCA 1994).

14 views0 comments