The Florida Senate

985.223  Incompetency in juvenile delinquency cases.--

(1)  If, at any time prior to or during a delinquency case involving a delinquent act or violation of law that would be a felony if committed by an adult, the court has reason to believe that the child named in the petition may be incompetent to proceed with the hearing, the court on its own motion may, or on the motion of the child's attorney or state attorney must, stay all proceedings and order an evaluation of the child's mental condition.

(a)  All determinations of competency shall be made at a hearing, with findings of fact based on an evaluation of the child's mental condition by not less than two nor more than three experts appointed by the court. If the determination of incompetency is based on the presence of a mental illness or mental retardation, this must be stated in the evaluation. In addition, a recommendation as to whether residential or nonresidential treatment or training is required must be included in the evaluation. All court orders determining incompetency must include specific findings by the court as to the nature of the incompetency.

(b)  For incompetency evaluations related to mental illness, the Department of Children and Family Services shall annually provide the courts with a list of mental health professionals who have completed a training program approved by the Department of Children and Family Services to perform the evaluations.

(c)  For incompetency evaluations related to mental retardation, the court shall order the Developmental Services Program Office within the Department of Children and Family Services to examine the child to determine if the child meets the definition of "retardation" in s. 393.063 and, if so, whether the child is competent to proceed with delinquency proceedings.

(d)  A child is competent to proceed if the child has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and the child has a rational and factual understanding of the present proceedings. The report must address the child's capacity to:

1.  Appreciate the charges or allegations against the child.

2.  Appreciate the range and nature of possible penalties that may be imposed in the proceedings against the child, if applicable.

3.  Understand the adversarial nature of the legal process.

4.  Disclose to counsel facts pertinent to the proceedings at issue.

5.  Display appropriate courtroom behavior.

6.  Testify relevantly.

(2)  Every child who is adjudicated incompetent to proceed may be involuntarily committed to the Department of Children and Family Services for treatment upon a finding by the court of clear and convincing evidence that:

(a)  The child is mentally ill and because of the mental illness; or the child is mentally retarded and because of the mental retardation:

1.  The child is manifestly incapable of surviving with the help of willing and responsible family or friends, including available alternative services, and without treatment the child is likely to either suffer from neglect or refuse to care for self, and such neglect or refusal poses a real and present threat of substantial harm to the child's well-being; or

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

(b)  All available less restrictive alternatives, including treatment in community residential facilities or community inpatient or outpatient settings which would offer an opportunity for improvement of the child's condition, are inappropriate.

(3)  Each child who has been adjudicated incompetent to proceed and who meets the criteria for commitment in subsection (2), must be committed to the Department of Children and Family Services, and that department may retain, and if it retains must treat, the child in the least restrictive alternative consistent with public safety. Any commitment of a child to a residential program must be separate from adult forensic programs. If the child attains competency, case management and supervision of the child will be transferred to the department in order to continue delinquency proceedings; however, the court retains authority to order the Department of Children and Family Services to provide continued treatment to maintain competency.

(a)  A child adjudicated incompetent due to mental retardation may be ordered into a program designated by the Department of Children and Family Services for retarded children.

(b)  A child adjudicated incompetent due to mental illness may be ordered into a program designated by the Department of Children and Family Services for mentally ill children.

(c)  Not later than 6 months after the date of commitment, or at the end of any period of extended treatment or training, or at any time the service provider determines the child has attained competency or no longer meets the criteria for commitment, the service provider must file a report with the court pursuant to the applicable Rules of Juvenile Procedure.

(4)  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, with reviews at least every 6 months to determine competency. If the court determines at any time that the child will never become competent to proceed, the court may dismiss the delinquency petition. 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 delinquency petition. If necessary, the court may order that proceedings under chapter 393 or chapter 394 be instituted. Such proceedings must be instituted not less than 60 days prior to the dismissal of the delinquency petition.

(5)  If a child who is found to be incompetent does not meet the commitment criteria of subsection (2), the court may order the Department of Children and Family Services to provide appropriate treatment and training in the community. All court-ordered treatment or training must be the least restrictive alternative that is consistent with public safety. Any commitment to a residential program must be separate from adult forensic programs. If a child is ordered to receive such services, the services shall be provided by the Department of Children and Family Services. The department shall continue to provide case management services to the child and receive notice of the competency status of the child. The competency determination must be reviewed at least every 6 months by the service provider, and a copy of a written report evaluating the child's competency must be filed by the provider with the court and with the Department of Children and Family Services and the department.

(6)  The provisions of this section shall be implemented only subject to specific appropriation.

History.--s. 4, ch. 96-398; s. 164, ch. 97-101; s. 31, ch. 97-238.

Note.--Former s. 39.0517.