State v. Everette, 3D04-2324.

• Decision Date: 27 October 2004
• Docket Number: No. 3D04-2366.,No. 3D04-2324.,3D04-2324.,3D04-2366.
• Citation: 911 So.2d 119
• Parties: STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. David EVERETTE, and State of Florida, Respondents.
• Court: Florida Supreme Court

Page 119

911 So.2d 119

STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. David EVERETTE, and State of Florida, Respondents.

No. 3D04-2324.

No. 3D04-2366.

District Court of Appeal of Florida, Third District.

October 27, 2004.

Rehearing and Rehearing En Banc Denied September 22, 2005.

Ilene J. Cantor, for Petitioner.

Bennett H. Brummer, Public Defender, and John E. Morrison, Assistant Public Defender, for Respondents.

Before LEVY, FLETCHER, and RAMIREZ, JJ.

PER CURIAM.

The Department of Children and Family Services ("the Department") petitions this Court for a Writ of Certiorari to quash a trial court Order which requires the Department to arrange for the transportation of the defendant, David Everette, to Miami, Florida, from Marianna, Florida, for court-appointed expert evaluations.

Mr. Everette was charged with first degree felony attempted murder and aggravated assault with a deadly weapon in 1994. After approximately two years, the court dismissed the charges against Mr. Everette, finding that the "Defendant has been incompetent to proceed due to Mental Retardation for over two years and that there is no substantial probability that he will regain mental competency to participate in these legal proceedings in the foreseeable future." Consequently, the court committed Mr. Everette, pursuant to section 393.11, Florida Statutes, "to the Department of Children and Families for secure Residential Placement and appropriate services for a period of time that shall not exceed the maximum sentence for the crime for which he was charged." (emphasis added).

The defendant was subsequently admitted to Pathways, a secure, forensic residential facility run by the Department. In August of 2004, Pathways was relocated from Miami, Florida, to Marianna, Florida. During the Pathways relocation, Mr. Everette's case was called for its annual hearing. At the hearing, the trial court appointed two expert witnesses to evaluate Mr. Everette, and directed the Department to transport Mr. Everette for the evaluations. The Department objected, arguing that pursuant to section 916.107(10), Florida Statutes, the County Sheriff is responsible for transporting Mr. Everette. The Court denied the Department's Motion to Order the County Sheriff to transport Mr. Everette for the evaluations, and ordered the Department to coordinate the evaluations, including scheduling and transporting Mr. Everette (Case No. 3D04-2324). The Court subsequently entered an Order to Comply with the Order to Transport (Case No. 3D04-2366). The Department seeks a writ of certiorari from both Orders.

Although Everette was involuntarily committed pursuant to section 393.11, Florida Statutes, which does not provide any guidance regarding transportation of the "client," we find that section 916.107(10), Florida Statutes, governs the transportation issue in the instant case.

Specifically, section 916.107(10), provides:

The sheriff shall consult with the governing board of the county as to the most appropriate and cost-effective means of transportation for forensic clients committed for treatment or training. . . . After such consultation with the governing board of the county, the sheriff shall determine the most appropriate and cost-effective means of transportation for forensic clients committed for treatment or training.

§ 916.107(10)(a), Fla. Stat. (2003). Moreover, section 916.105, explains the legislative intent of the chapter:

It is the intent of the Legislature that the Department of Children and Family Services establish, locate, and maintain separate and secure facilities and programs for the treatment or training of defendants who are charged with a felony and who have been found to be incompetent to proceed due to their mental illness, retardation, or autism, or who have been acquitted of felonies by reason of insanity, and who, while still under the jurisdiction of the committing court, are committed to the department under the provisions of this chapter.

§ 916.105(1), Fla. Stat. (2003)(emphasis added).

In the instant case, the trial court dismissed Everette's criminal case pursuant to section 916.145, Florida Statutes (1996), committed Everette, pursuant to section 393.11, Florida Statutes, to the Department, and retained jurisdiction over Everette.

Section 916.145, which has since been renumbered to section 916.303(a), Florida Statutes (2003), required the dismissal of charges against a defendant who is adjudicated incompetent to stand trial two years after such adjudication. § 916.145, Fla. Stat. (1996). Moreover, section 916.13, Florida Statutes (1996), required that "if criminal charges are subsequently dropped and the client is involuntarily admitted to retardation residential services, the placement at the secure facility may be continued if so ordered by the committing court following a hearing with the same due process requirements as set out in s. 393.11 for an initial involuntary admission." § 916.13(b), Fla. Stat. (1996). Currently, section 916.303, Florida Statutes (2003), provides that if charges against an incompetent defendant are dismissed, the department, the state attorney, or the defendant's attorney may ask the trial court to involuntarily commit the defendant pursuant to section 393.11, Florida Statutes. § 916.303(2)(a), Fla. Stat. (2003). Consequently, Mr. Everette is clearly a "forensic client," within the meaning of section 916.106(7), Florida Statutes (2003), i.e., a "defendant who is mentally ill, retarded, or autistic and who is committed to the department pursuant to this chapter and: (a) Who has been determined to need treatment for a mental illness or training for retardation or autism; (b) who has been found incompetent to proceed on a felony offense or has been acquitted of a felony offense by reason of insanity; (c) Who has been determined by the department to: 1. Be dangerous to himself or herself or others; . . . ." § 916.106(7), Fla. Stat. (emphasis added). Thus, contrary to the dissent's suggestion, section 916.107(10)(a), Florida Statutes, does apply in the instant case. See Palm Beach Co. Sheriff v. State, 854 So.2d 278 (Fla. 4th DCA 2003)(Department was ordered to advise the Sheriff's office where to deliver the defendants, who were determined to be incompetent to stand trial).

Accordingly, we find that the trial court departed from the essential requirements of the law in placing the responsibility to transport Mr. David Everette from Marianna, Florida, to Miami, Florida, for court-appointed expert evaluations on the Department of Children & Families. Section 916.107(10), Florida Statutes (2004), which governs transporting forensic clients, places the transportation responsibility on the Sheriff. § 916.107(10)(a), Fla. Stat. (2003).

The housing issue raised by the State is a non-issue because there is no Order requiring anyone to arrange for housing while the defendant is evaluated. Consequently, the normal procedure would apply.

We grant the Department's Petitions for Writ of Certiorari and quash the trial court's Order requiring the Department to transport Mr. Everette. If the trial court deems the transport necessary, the court should Order the County Sheriff to arrange for Mr. Everette's transportation, not the Department.

Certiorari granted, orders quashed, and remanded.

LEVY and FLETCHER, JJ., concur.

RAMIREZ, J., (dissenting).

I must respectfully dissent. The majority opinion would have the trial court order the County Sheriff to arrange for Mr. Everette's transportation when the sheriff is not a party to this litigation, has been given no notice, and has had no opportunity to be heard on the matter. To justify its decision, the majority cites a statute that applies to criminal defendants, while Everette is a mentally retarded person who was involuntarily admitted to residential services under a different statute.

I. FACTUAL BACKGROUND

Respondent David Everette was charged with attempted first degree murder in 1994. After he was found not competent, his charges were dismissed in 1996 and he was involuntarily committed to a secure residential setting pursuant to section 393.11, Florida Statutes (1996).¹ In 1997, Everette was admitted to "Pathways," a secure, forensic residential facility of the petitioner that treats clients of the department's mentally retarded program. See Part III, Ch. 916, Fla. Stat. (2004). In an evaluation conducted in November, 2003, the department determined that Everette could be transferred to a non-secure facility.

Although we have a very limited record given that this is a petition for writ of certiorari, it is evident that the department did nothing with this evaluation and recommendation, Seven months later, on June 21, 2004, the department submitted a "Notice of Transfer to a Nonforensic Residential Setting and Notice of Termination of this Court's Jurisdiction upon Transfer to Nonforensic Placement." In it, the department states that it intends to transfer Everette from Pathways to a licensed Medicaid waiver group home, "Baker Group Home, Inc." located in Miami, Florida.

On August 2, 2004, the trial court held a hearing and determined that it needed to schedule an annual hearing under section 916.303(2)(b), Florida Statutes (2004), to determine whether Everette still met the criteria for secure residential placement.² The court, therefore, entered a written order appointing two expert witnesses to evaluate Everette. The court also orally ordered the department to be responsible for the coordination of the evaluations, including the scheduling and the transportation. The department objected and the court overruled the objection. No appeal was taken of this order. Instead, on the very next day, August 3, 2004, Everette was sent out of Miami-Dade County to Marianna, Florida, approximately 550 miles away. His move was in conjunction with the relocation of the Pathways facility. Everette now resides in Marianna, Florida.

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