Powell v. Genung

• Decision Date: 04 December 1974
• Docket Number: No. 45224,45224
• Citation: 306 So.2d 113
• Parties: James POWELL, Petitioner, v. Don GENUNG, Sheriff, Pinellas County, Florida, and Peter Ivory, M.D., Superintendent, Florida State Hospital, Chattahoochee, Florida, Respondents.
• Court: Florida Supreme Court

Page 113

306 So.2d 113

James POWELL, Petitioner, v. Don GENUNG, Sheriff, Pinellas County, Florida, and Peter Ivory, M.D., Superintendent, Florida State Hospital, Chattahoochee, Florida, Respondents.

No. 45224.

Supreme Court of Florida.

Dec. 4, 1974.

Rehearing Denied Feb. 5, 1975.

Arnold D. Levine of Levine, Freedman & Hirsch, Tampa, for petitioner.

James T. Russell, State's Atty., Denis M. deVlaming, Asst. State's Atty., and James G. Mahorner, Tallahassee, for respondents.

ROBERTS, Justice.

This is an original proceeding in Habeas Corpus. We issued the writ and respondents have filed a return.

Petitioner was charged with murder in the first degree and was found by the jury to be not guilty by reason of insanity. The trial court, thereafter, denied petitioner's motions for entry of judgment of acquittal and for discharge, and after considering the evidence adduced at the trial, the plea of not guilty by reason of insanity and the jury's verdict, the trial judge concluded that petitioner is manifestly dangerous to the peace and safety of the people and should not be allowed to go at large, and ordered him committed to the state hospital for treatment pursuant to Rule 3.460, Fla. Cr.R.P. On May 24, 1973, the trial court entered an order requiring that defendant be transported to the Florida State Hospital at Chattahoochee, Florida, for appropriate treatment. Specifically the trial judge in said order stated:

'It is therefore ORDERED AND ADJUDGED that the defendant, JAMES POWELL, shall be transported to the Florida State Hospital, Chattahoochee, Florida, by the Sheriff of Pinellas County, Florida, and delivered to the Superintendent thereof, and that he be there confined, detained, and treated Until the further order of the court, and in the event said defendant shall cease to be manifestly dangerous to the peach (sic) and safety of the people, Said fact shall be reported to this court for further order.' (emphasis supplied)

By letter of January 22, 1974, Respondent Peter Ivory, Superintendent of the Florida State Hospital, advised the trial court, as follows:

'Mr. James Powell was admitted to the Florida State Hospital on June 20, 1973, as involuntary incompetent. His treatment has been completed and further hospitalization is not indicated at this time. He has been found no longer dangerous to the safety of others.'

The cause then came on to be heard before the trial court on the report of the Clinical Director of the Florida State Hospital at Chattahoochee and the trial judge ordered that defendant be returned to the court for further proceedings. Following a hearing, the trial court entered an order dated March 12, 1974, denying petitioner's motion to compel release and explicitly stating:

'The Court finds that it has jurisdiction of the person of James Powell and of this cause.

'The recommendations of the hospital and treating physicians are based upon the assumption that this court would have continuing jurisdiction over James Powell after his discharge from hospitalization and consequently could recognize and prevent future narcotic intoxication. This assumption is incorrect.

'This court finds from the evidence that the underlying psychosis remains even though the symptoms are in a state of remission. The patient remains a manifest danger to himself and others and therefore his hospitalization should be continued.

'It is thereupon Ordered that the Motion To Compel Release is denied.

'It is further ORDERED AND ADJUDGED that the Sheriff of Pinellas County, Florida or his duly appointed deputy shall forthwith transport the said JAMES POWELL to the Florida State Hospital, Chattahoochee, Florida; the Superintendent thereof shall accept the said James Powell to be there confined, detained and treated until the further order of this Court, and that in the event said JAMES POWELL shall cease to be manifestly dangerous to the peace and safety of the people, said fact shall be reported to this Court for further order.'

By the instant petition for writ of habeas corpus, petitioner seeks an order from this Court declaring the trial court's orders of May 24, 1973, and March 12, 1974, to be null and void, and authorizing petitioner's release pursuant to Chapter 394, Florida Statutes.

Respondents, Peter Ivory, Superintendent, Florida State Hospital at Chattahoochee, and Don Genung, Sheriff of Pinellas County, Florida, have filed separate returns to the writ of habeas corpus.

Respondent, Sheriff Genung, correctly states that although the letter of the Superintendent states that the petitioner is no longer dangerous to the safety of others, the committing court after conducting a thorough hearing on March 6, 1974, found that petitioner was in fact manifestly dangerous to himself and others. This finding by the trial court is fully supported by the transcript of the hearing held on March 6, 1974, and the evidence presented at this hearing sustains and justifies the trial court's finding as to the necessity for the continued treatment of petitioner at the state hospital. Pursuant to and consistent with Rule 3.460, Fla.Cr.R.P., which provided prior to amendment, and at the time of commitment, as follows:

'Rule 3.460 Acquittal for Cause of Insanity. When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person, or may give him into the care of his friends, on their giving satisfactory security for the proper care and protection of such person; otherwise he shall be discharged.'

This rule is substantially identical to Section 919.11, Florida Statutes, the statutory precursor of Rule 3.460, which statutory provision was repealed by the Legislature by Chapter 70--339, Laws of Florida, as having been superceded by the Rules of Criminal Procedure. Section 919.11, F.S had been interpreted by the courts of this state to allow continuing jurisdiction over petitioner in the trial court to determine by subsequent hearing and order whether defendant was still manifestly dangerous to the public. State v. Eaton, 161 So.2d 549 (Fla.App.1964), Oksten v. State, 173 So.2d 489 (Fla.App.1965), cert. den. 177 So.2d 11 (Fla.1965), U.S. cert. den. 382 U.S. 867, 86 S.Ct. 138, 15 L.Ed.2d 105. This Court by amendment clarified ¹ the rule which presently provides as follows:

'Rule 3.460 Acquittal for Cause of Insanity. When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person and such person shall be held in custody until released by order of the committing court, or may give him into the care of his friends, on their giving satisfactory security for the proper care and protection of such person; otherwise he shall be discharged.'

The trial court properly retained jurisdiction over petitioner to enter the aforestated orders. In accordance with Rule 3.460, he continues to be held under the jurisdiction of the circuit court of Pinellas County, Florida until released by order of that court. State v. Eaton, supra, and Oksten v. State, supra. ²

By the instant proceedings to determine whether petitioner, who had been found not guilty by reason of insanity of murder in the first degree, no longer posed a dangerous threat to the safety of himself and others, he was afforded all constitutional due process requisite in that, inter alia, he was allowed the right to be confronted with the witnesses against him, to cross-examine them, and to offer evidence of his own. Following his commitment in 1973, he requested a hearing to determine whether he is still manifestly dangerous to the peace and safety of the people. The committing court granted this full hearing whereat petitioner was represented by counsel, and at the conclusion of which the trial judge properly determined that petitioner continues at the present time to pose a danger to others. See Oksten v. State, supra, and State v. Eaton, supra. ³

Petitioner's reliance on Jones v. O'Connor, 185 So.2d 167 (Fla.1966), and Trippodo v. Rogers, 54 So.2d 64 (Fla.1951), as authority for his release is misplaced as evidenced by the facts thereof. In both Jones, supra, and Trippodo, supra, the State entered a Nolle prosequi to the charges. This Court in Jones, supra, determined that a Nolle prosequi of a first degree murder charge where the defendant was found insane and committed to the state hospital eliminated the necessity of the committing court's approval as a condition of release. In Trippodo, supra, the defendant was charged with first degree murder, was adjudged to be insane and incapable of standing trial, was committed to the state hospital for treatment and safekeeping, and the indictment against him was unconditionally Nol prossed. He was subsequently found to be sane by the Superintendent and medical staff of the Florida State Hospital. This Court determined that in view of the fact that the criminal charge of murder in the first degree had been unconditionally Nol prossed upon motion of the State Attorney, the provisions of Section 917.01, Florida Statutes (1949), ⁴ requiring the consent of the committing court as a condition precedent to release of the petitioner were not applicable. Sub judice, petitioner was not committed pursuant to Section 917.01, Florida Statutes, but rather was found sane to stand trial, was found not guilty by reason...