Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3322 _____________________________ MARK BURKE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Gadsden County. Kenneth L. Hosford, Judge. June 26, 2020 PER CURIAM. Mark Burke, a forensic client previously committed at the Florida State Hospital, appeals an order authorizing the Florida Department of Children and Families to involuntarily medicate him. * He argues that the trial court erred in authorizing his forced * During this appeal, the trial court declared Burke competent to proceed and ordered his discharge from the Florida State Hospital. Even so, this appeal is not moot. See Moreland v. State, 706 So. 2d 71, 72 (Fla. 1st DCA 1998) (holding that Moreland’s appeal of an order authorizing medical treatment without his consent was not moot even though he was discharged from the hospital and placed in the custody of the sheriff’s department). medication solely to render him competent to stand trial. We affirm because the trial court authorized Burke’s involuntary medication not only to restore his competency to proceed to trial, but also because Burke’s refusal to take medication put his health at risk. Facts Burke suffered from a mental illness. After the State filed criminal charges against him, a trial court declared Burke incompetent to proceed and committed him to the custody of DCF at Florida State Hospital. A month after his admission, the hospital administrator petitioned the court under section 916.107(3)(a), Florida Statutes (2019), for an order authorizing Burke’s involuntary treatment, including the administration of psychotropic medications. The administrator explained that Burke was unable to give express and informed consent to the treatment. At an evidentiary hearing on the hospital’s petition, Dr. Masood Khan, Burke’s treating psychiatrist, testified that Burke suffered from a mental illness and that psychotropic medications were necessary to treat the illness. Dr. Khan explained that Burke was risking damage to his brain because of the lack of the proper medication. The longer Burke went without the proper medication, the harder it would be to restore him to his previous level of functioning. With treatment, Dr. Khan hoped to lessen Burke’s symptoms and possibly restore his ability to aid in his own defense. After the hearing, the court entered an order confirming that it had considered the requirements of section 916.107(3)(a) when determining whether to authorize the involuntary medication of Burke. The court found that the proposed treatment was not experimental and did not present an unreasonable risk of serious, hazardous, or irreversible side effects. The court considered Burke’s expressed preference about treatment, the probability of adverse side effects, the prognosis without treatment, and the prognosis with treatment. The trial court found that Burke met the criteria for involuntary treatment and granted the hospital’s petition. This timely appeal follows. 2 Analysis Burke does not challenge the trial court’s application of the statutory factors set forth in section 916.107(3)(a). Rather, he asserts that the trial court also had to consider the factors provided in Sell v. United States, 539 U.S. 166, 179–80 (2003), before it could authorize involuntary medication because the sole purpose of the treatment was to restore his competency to stand trial. His argument fails because restoration of competency was not the only reason the trial court authorized Burke’s involuntary medication. The trial court also authorized the treatment because Burke’s refusal to take medication put his health at risk. Sell provides a four-part test that courts should apply before authorizing the involuntary administration of medication for the sole purpose of rendering a defendant competent to stand trial. See id. at 180–82. But a trial court need not apply the test when involuntary medication is “related to the individual’s dangerousness, or purposes related to the individual’s own interests where refusal to take drugs puts his health gravely at risk.” Id. at 181–82. Here, the trial court did not authorize involuntary medication solely to render Burke competent to stand trial. Instead, competent, substantial evidence showed that without medication, Burke’s condition would continue to worsen, and he risked brain damage. Because Burke’s refusal to take medication put his own health gravely at risk, the trial court did not need to apply the Sell factors. See Hicks v. N. Fla. Reg’l Evaluation & Treatment Ctr., 285 So. 3d 405, 409 (Fla. 1st DCA 2019) (holding that “Sell does not apply when a trial court orders involuntary medication of a forensic client for reasons other than restoration of competency”). And so, we AFFIRM the order authorizing Burke’s involuntary medical treatment. ROBERTS, ROWE, and BILBREY, JJ., concur. 3 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Jasmine Q. Russell, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Bilal Ahmed Faruqui, Senior Assistant Attorney General, Tallahassee, for Appellee. 4