Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. JASON JAMES BOTES and STATE OF FLORIDA, Respondents. No. 2D22-1198 February 15, 2023 Petition for Writ of Certiorari to the Circuit Court for Pinellas County; Philip J. Federico, Judge. Alicia Victoria Gonzalez, Assistant SunCoast Regional Legal Counsel, Department of Children and Families, Tampa, for Petitioner. Anne F. Borghetti, Clearwater, for Respondent Jason James Botes. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent State of Florida. SMITH, Judge. The Department of Children and Families (the Department) filed a petition for writ of certiorari seeking review of the trial court's Order Adjudging Defendant Incompetent to Proceed and Commitment to Department of Children and Families rendered March 14, 2022, which involuntarily committed Jason Botes to the Department's care under section 916.13(1), Florida Statutes (2022), after the trial court found him incompetent to proceed in his criminal cases. Because the record was devoid of clear and convincing evidence that Mr. Botes' condition would respond to treatment or that he would regain competency in the foreseeable future, Mr. Botes did not meet the criteria for involuntary commitment and his commitment was not authorized by section 916.13(1)(c). Therefore, we grant the Department's petition and quash the order. "[T]o obtain a writ of certiorari, there must exist '(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.' " In re Commitment of Reilly, 970 So. 2d 453, 455 (Fla. 2d DCA 2007) (alteration in original) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)). "As a general rule, certiorari is the proper vehicle for seeking this court's review of orders committing an individual involuntarily." Id.; see also Dep't of Child. & Fams. v. Musa, 321 So. 3d 908, 910-11 (Fla. 2d DCA 2021) (reasoning that irreparable harm results when the Department is required to treat a defendant beyond what is required by statute (citing Dep't of Child. & Fams. v. Garcia, 245 So. 3d 919, 922 (Fla. 3d DCA 2018))). The Department complains that while there was evidence that Mr. Botes was incompetent, he does not suffer from a "mental illness" as defined by the statute and that there was no evidence that Mr. Botes would respond to treatment and regain his competency in order to proceed in the reasonably foreseeable future. Therefore, the Department argues the statutory criteria in section 916.13(1)(c) was not met. 2 We first address the Department's argument that Mr. Botes does not suffer from a "mental illness" as defined in chapter 916 because his incompetency is the result of a traumatic brain injury, which is expressly excluded from the statutory definition of mental illness. We reject this argument. Section 916.106(14) provides that for the purposes of this chapter, the term "mental illness" does not apply to "a defendant with traumatic brain injury . . . who lacks a co-occurring mental illness." In this case, three different doctors evaluated Mr. Botes, and all three agreed that Mr. Botes has a traumatic brain injury, which has caused his incompetence. If the traumatic brain injury was Mr. Botes' only impairment, he would not have a "mental illness" as defined in section 916.106(14). However, all three doctors also noted that Mr. Botes has other underlying "mental illnesses" that contribute to his incompetency. These evaluations constitute substantial competent evidence to support the trial court's finding that Mr. Botes suffers from a mental illness as defined in section 916.106(14). We next turn to the issue of whether the trial court's involuntary commitment of Mr. Botes was authorized under section 916.13. A trial court is authorized to involuntarily commit a defendant to the custody of the Department when the defendant meets the statutory criteria for involuntary commitment under chapter 916. § 916.13(2) ("A defendant who has been charged with a felony and who has been adjudicated incompetent to proceed due to mental illness, and who meets the criteria for involuntary commitment under this chapter, may be committed to the department, and the department shall retain and treat the defendant."). The statutory criteria is set forth in section 916.13(1)(a)-(c), which requires: 3 (1) Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that: (a) The defendant has a mental illness and because of the mental illness: 1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant's well-being; or 2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; (b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of the defendant's condition have been judged to be inappropriate; and (c) There is a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future. See also Fla. R. Crim. P. 3.212(c)(3) ("A defendant may be committed for treatment to restore a defendant's competence to proceed if the court finds that: (A) the defendant meets the criteria for commitment as set forth by statute; (B) there is a substantial probability that the mental illness or intellectual disability causing the defendant's incompetence will respond to treatment and that the defendant will regain competency to proceed in the reasonably foreseeable future; (C) treatment appropriate 4 for restoration of the defendant's competence to proceed is available; and (D) no appropriate treatment alternative less restrictive than that involving commitment is available."). In the instant case, three different court-appointed doctors evaluated Mr. Botes. One doctor opined Mr. Botes is competent to proceed, while the other two both opined that further evaluation is required to determine whether or not Mr. Botes' competency may be restored. The trial court departed from the essential requirements of the law by ordering Mr. Botes' involuntary commitment where there was no evidence that he could be restored to competency. See Musa, 321 So. 3d at 910-11 (concluding that the trial court departed from the essential requirements of the law in finding defendant would regain competency to proceed in the reasonably foreseeable future where there was no evidence presented to support this finding and, thus, the defendant did not meet the criteria for commitment); Dep't of Child. & Fam. Servs. v. State, 124 So. 3d 430, 433 (Fla. 2d DCA 2013) (holding that a defendant that is not restorable to competency does not satisfy the requirements for involuntary commitment under section 916.13(1)(c)); Oren v. Judd, 940 So. 2d 1271, 1273 (Fla. 2d DCA 2006) (same); Garcia, 245 So. 3d at 924 (Fla. 3d DCA 2018) ("[T]he trial court exceeded its jurisdiction when it ordered the department to involuntary [sic] commit Garcia after he was found incompetent without evidence that he met the criteria under section 916.13(1)(c)."). Because the statute requires clear and convincing evidence that Mr. Botes' "incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future," Mr. Botes did not meet the statutory criteria for involuntary commitment 5 and his commitment by the trial court was not authorized by section 916.13(1). § 916.13(1)(c) (emphasis added). Petition for certiorari granted, and order of commitment quashed.1 CASANUEVA and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 1 "Because our review is by certiorari, we express no opinion on what the trial court should do . . . other than to quash the involuntary commitment part of the trial court's order." Garcia, 245 So. 3d at 924 n.2; see also Musa, 321 So. 3d at 911 n.2. However, as the Garcia court explained, "further proceedings . . . could include the [S]tate instituting civil commitment proceedings, releasing [Mr. Botes] . . . or ordering [Mr. Botes] to be examined by additional experts." See id. 6