Cole v. State, 98-01718

Decision Date01 June 1998
Docket NumberNo. 98-01718,98-01718
Citation714 So.2d 479
Parties23 Fla. L. Weekly D1363 Steven COLE, Petitioner/Appellant, v. STATE of Florida, Respondent/Appellee.
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Robert T. Connelly, Assistant Public Defender, Bartow, for Petitioner.

Robert A. Butterworth, Attorney General, Tallahassee, and Anne E. Sheer, Assistant Attorney General, Tampa, for Respondent.


The circuit court for the Tenth Judicial Circuit convicted Steven Cole of indirect criminal contempt for violating the court's order directing him to complete a program of treatment for substance abuse. The court sentenced Cole to serve 90 days in jail, and directed that he be returned to court on June 4, 1998, for a hearing on his need for further substance abuse treatment.

Cole petitioned us for a writ of habeas corpus and for other relief. On May 14, 1998, we ordered his release, and we advised that this opinion would follow. We quash Cole's conviction and sentence for indirect criminal contempt. Further, we prohibit the circuit court to enforce or otherwise attempt to exercise jurisdiction pursuant to its February 12, 1998 involuntary treatment order.


Cole's road to the Polk County Jail is best understood by examining the vehicle that carried him along it.

The Marchman Act

In 1993 the legislature enacted the "Hal S. Marchman Alcohol and Other Drug Services Act of 1993," codified in chapter 397, Florida Statutes. Finding that substance abuse is a major health problem, the legislature declared that the chapter's purpose, among other things, was to "provide for a comprehensive continuum of accessible and quality substance abuse prevention, intervention, and treatment services in the least restrictive environment of optimum care ..." and to "establish a clear framework for the comprehensive provision of substance abuse services in the context of a coordinated and orderly system." § 397.305(2), (10), Fla. Stat. (1997). 1

In its first two parts, the Act directs the Department of Health and Rehabilitative Services (now the Department of Health, Ch. 96-403, § 8, at 1892, Laws of Florida) to develop a comprehensive state plan for the provision of substance abuse services, and it establishes qualifications and requirements for the licensure and regulation of substance abuse service providers. § 397.321, .401-.481, Fla. Stat. (1997).

Part III of the Act contains section 397.501, Florida Statutes (1997), entitled "Rights of clients." One of the enumerated rights is particularly relevant to this case: Subsection (8) provides that in any involuntary proceeding for substance abuse assessment, stabilization, or treatment, the client must be informed that he has the right to counsel. The client also is to be advised that if he cannot afford an attorney, he may ask the court to appoint one to represent him.

Parts IV and V of the Act address the provision of substance abuse assessment and treatment services on a voluntary or an involuntary basis, respectively. Part VI imposes restrictions on local ordinances addressing public substance abuse. Part VII authorizes courts to order persons accused or convicted of offenses to receive substance abuse services. Part VIII directs the Department of Corrections to assess arriving inmates for substance abuse impairment and to furnish them necessary services. Part IX establishes the Statewide Coordinator for Substance Abuse Impairment Prevention and Treatment. Part X directs the Department of Health and Rehabilitative Services to designate prototype juvenile addictions receiving facilities.

Involuntary Admissions Under the Marchman Act

Our focus is on Part V of the Act, governing "involuntary admissions procedures." These include non-court ordered admissions, such as protective custody and emergency admissions, as well as court ordered involuntary admissions, either for assessment and stabilization or for treatment.

Each statute authorizing one of the foregoing involuntary admissions sets forth criteria specific to the type of admission involved. However, all of the statutes include as a prerequisite the satisfaction of the test set forth in section 397.675, Florida Statutes (1997):

A person meets the criteria for involuntary admission if there is good faith reason to believe the person is substance abuse impaired and, because of such impairment:

(1) Has lost the power of self-control with respect to substance use; and either

(2)(a) Has inflicted, or threatened or attempted to inflict, or unless admitted is likely to inflict, physical harm on himself or herself or another; or

(b) Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that the person is incapable of appreciating his or her need for such services and of making a rational decision in regard thereto; however, mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services. 2

As mentioned, Part V of the Marchman Act authorizes two kinds of court ordered involuntary admissions, one for assessment and stabilization, and one for treatment. As to both, section 397.681, Florida Statutes (1997), grants the circuit courts jurisdiction to entertain such proceedings. It also emphasizes that at every stage of any such proceeding the person whose admission is sought has the right to counsel, and must be appointed an attorney if he cannot afford one.

Involuntary Assessment and Stabilization Under the Marchman Act

Involuntary admissions for assessment and stabilization are governed by Part V, subpart Under the statutory scheme, an involuntary assessment or stabilization proceeding may be commenced by the filing of a petition by, among others, any relative of the person alleged to be substance abuse impaired. § 397.6811(1). 4 The required contents of such a petition are set forth in section 397.6814, Florida Statutes (1997). Pertinent to our discussion are the requirements that the petition include a statement of the respondent's ability to afford an attorney, if known, and that it state facts to support the respondent's alleged need for involuntary assessment and stabilization. The latter must include:

                F, of the Act. 3  Pursuant to section 397.6811, Florida Statutes (1997), a person who "appear[s] to meet the criteria" set forth in section 397.675, quoted above, may be involuntarily admitted to a licensed substance abuse service provider for assessment and/or stabilization for up to five days

(1) The reason for the petitioner's belief that the respondent is substance abuse impaired; and

(2) The reason for the petitioner's belief that because of such impairment the respondent has lost the power of self-control with respect to substance abuse; and either

(3)(a) The reason the petitioner believes that the respondent has inflicted or is likely to inflict physical harm on himself or herself or others unless admitted; or

(b) The reason the petitioner believes that the respondent's refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse that the respondent is incapable of appreciating his or her need for care and of making a rational decision regarding that need for care. If the respondent has refused to submit to an assessment, such refusal must be alleged in the petition.

When a petition is filed, the court is required by section 397.6815, Florida Statutes (1997), to ascertain whether the respondent is represented by an attorney. If not, the court must determine whether, on the basis of the petition, an attorney should be appointed. The statute further provides that the court must either issue a summons to the respondent and furnish him a copy of the petition and a notice of hearing, and to conduct a hearing on the petition within ten days; or, without appointing counsel, and relying solely on the contents of the petition, enter an ex parte order authorizing the respondent's involuntary assessment and stabilization. § 397.6815(1), (2). 5

If a hearing is held, section 397.6818, Florida Statutes (1997), directs that the court must hear all relevant evidence, and then determine whether there is "a reasonable basis to believe" that the respondent meets the involuntary admission criteria of section 397.675. Based on that determination, the court must either dismiss the petition or enter an order authorizing the involuntary assessment and stabilization of the respondent. In the latter event, the order must include findings as to the availability and appropriateness of the least restrictive alternatives A licensed substance abuse service provider may admit a client for involuntary assessment and stabilization for a period not to exceed five days. § 397.6819, Fla. Stat. (1997). 6 The assessment must be performed without unreasonable delay by a "qualified professional." 7 If the person who performs the assessment is not a physician, the assessment must be reviewed by a physician before the end of the assessment period. Id.

and the need for the appointment of an attorney to represent the respondent. Id.

Section 397.6822, Florida Statutes (1997), entitled "Disposition of client after involuntary assessment," provides that based on the involuntary assessment, the qualified professional must do one of three things. First, he or she may release the client. Second, the professional may allow a consenting client to remain voluntarily at the licensed provider. Third, the professional may retain the client if a timely petition to admit the client for involuntary treatment has been filed.

Involuntary Treatment Under the Marchman Act

Involuntary treatment is governed by Part V, subpart G, of the Marchman Act. A person may be the subject of a petition for involuntary treatment if he or she meets the criteria for involuntary admission prescribed in section 397.675 and, in...

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