Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DEPARTMENT OF CHILDREN AND ) FAMILIES, ) ) Petitioner, ) ) v. ) Case No. 2D20-2881 ) MAHER MOHAMMAD MUSA and ) STATE OF FLORIDA, ) ) Respondents. ) ___________________________________) Opinion filed May 28, 2021. Petition for Writ of Certiorari to the Circuit Court for Pasco County; Kimberly Campbell, Judge. Alicia Victoria Gonzalez, Assistant Suncoast Regional Legal Counsel of Department of Children and Families, Tampa, for Petitioner. Sara Mollo, Public Defender, and Joy K. Goodyear, Assistant Public Defender, Clearwater, for Respondent, Maher Mohammad Musa. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent, State of Florida. LABRIT, Judge. The Department of Children and Families (the Department) petitions this court for a writ of certiorari quashing an order of commitment. Because the commitment order does not meet the criteria prescribed in section 916.13, Florida Statutes (2019), we grant the Department's petition and quash the order. Maher Mohammad Musa was charged with falsely impersonating an officer. As the case progressed, Mr. Musa's competency to stand trial came into question. Ultimately, the trial court found Mr. Musa incompetent to proceed and issued an order of commitment, placing Mr. Musa into the custody of the Department. The Department moved to intervene and vacate the order, arguing that Mr. Musa did not meet the statutory requirements for commitment. Specifically, the Department contended that the commitment order was unsupported by clear and convincing evidence that Mr. Musa could respond to treatment and regain competency in the reasonably foreseeable future. After a hearing, the trial court denied the Department's motion. The Department filed the current petition for writ of certiorari, raising the same statutory arguments as below. "[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." Dep't of Child. & Fams. v. Carmona, 159 So. 3d 165, 166 (Fla. 2d DCA 2015) (alteration in original). The Third District has explained the basis for exercising certiorari jurisdiction in cases such as this one. "Certiorari jurisdiction lies to rectify a trial court order to the [d]epartment to assume treatment responsibilities for an individual beyond what is required by statute." Dep't of Children & Families v. C.Z., 201 So. 3d 78, 81 (Fla. 3d DCA -2- 2015). "Certiorari jurisdiction lies to review DCF's claim that the trial court has acted in excess of its jurisdiction by ordering DCF to undertake responsibilities beyond what is required by statute." Dep't of Children & Family [Servs.] v. Amaya, 10 So. 3d 152, 154 (Fla. 4th DCA 2009). Finally, "certiorari does lie where there is irreparable harm if entities such as . . . HRS, and [the county] are required to pay for treatment or transportation of the detainee and there is no adequate remedy on appeal considering the non-party status of these petitioners." State Dep't of Health & Rehab. Servs. v. Myers, 696 So. 2d 863, 865 (Fla. 4th DCA 1997). Dep't of Child. & Fams. v. Garcia, 245 So. 3d 919, 922 (Fla. 3d DCA 2018) (alterations in original); see also Carmona, 159 So. 3d at 166 (same). And "[a]lthough the Department was not a party to the criminal case or commitment proceeding, it has standing to seek certiorari review of the circuit court order because it is affected by that order and no other remedy is available." Id. Chapter 916 governs proceedings involving mentally ill and intellectually disabled defendants and, as relevant here, those deemed incompetent to proceed to trial. See generally § 916.105, Fla. Stat. (2019). The Department is required to provide treatment and training to those individuals who meet the statutory criteria for commitment as set forth in section 916.13(1), which provides in pertinent part: (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: .... (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. When a defendant cannot be restored to competency, he "does not satisfy the -3- requirements for involuntary pretrial commitment found in section 916.13(1)(c)." Dep't of Child. & Fam. Servs. v. Barnett, 124 So. 3d 430, 433 (Fla. 2d DCA 2013). The sole issue in this case is whether the trial court's conclusion that Mr. Musa would regain competency to proceed in the reasonably foreseeable future constituted a departure from the essential requirements of law. We conclude that it did. Three different clinicians evaluated Mr. Musa, and none determined that he could be restored to competency in the reasonably foreseeable future. One psychologist expressly stated that "Mr. Musa did not appear to be able to be restored in a reasonable amount of time." Another clinician opined that Mr. Musa was "unlikely to be trained to meet the standards necessary for competence to stand trial." And the third psychologist ultimately declined to address the issue of restorability because of Mr. Musa's unstable condition. In spite of this evidence, the trial court concluded that "there is a substantial probability" that Mr. Musa would "regain competency to proceed in the reasonably foreseeable future." In denying the Department's motion to intervene and vacate the commitment order, the trial court reiterated its belief that the clinicians' evaluations "substantially support[] the court's prior findings" that Mr. Musa is restorable. Pursuant to section 916.13(1), when a defendant "is found incompetent to proceed, he may be involuntarily committed only if the trial court finds by clear and convincing evidence that" there is a "substantial probability that . . . the defendant will regain competency to proceed in the reasonably foreseeable future." Garcia, 245 So. 3d at 922–23 (emphasis added). At best, there is no evidence that Mr. Musa is restorable. At worst, there is evidence that he is not restorable. Under such circumstances, "the trial court could not have found by clear and convincing evidence -4- that [Mr. Garcia's condition] would respond to treatment and [he] would regain competency in the foreseeable future." Id. at 923. Accordingly, Mr. Musa's commitment "was not authorized by section 916.13(1)." See Oren v. Judd, 940 So. 2d 1271, 1273 (Fla. 2d DCA 2006); see also Barnett, 124 So. 3d at 433 ("[A] trial court simply has no authority to commit a criminal defendant to the Department when that defendant does not meet the statutory criteria."). Therefore, the trial court exceeded its jurisdiction, and its commitment order causes irreparable harm to the Department which cannot be remedied on appeal. See Garcia, 245 So. 3d at 922; see also Carmona, 159 So. 3d at 167 (stating that involuntary commitment of defendant "was a departure from the essential requirements of law" where defendant did not meet criteria of section 916.13). The State argues that because none of the clinicians who evaluated Mr. Musa definitively declared that he was unrestorable to competency, he is potentially restorable. This argument misses the mark because a "finding that [a defendant] 'might' be restored to competency . . . does [not] satisfy the statutory requirement of clear and convincing evidence that there be a 'substantial probability' that the petitioner will regain competency in the foreseeable future." Horton v. Judd, 80 So. 3d 439, 440 (Fla. 2d DCA 2012). We grant the Department's petition for certiorari and quash the order of commitment.1 1As was the case in Garcia, "[b]ecause 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." 245 So. 3d at 924 n.2. However, as the Garcia court explained, "further proceedings . . . could include the state instituting civil commitment proceedings, releasing [Mr. Musa] . . . or ordering [Mr. Musa] to be examined by additional experts." See id. -5- NORTHCUTT and VILLANTI, JJ., Concur. -6-