IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

DEPARTMENT OF CHILDREN AND FAMILIES

,

Petitioner

,

v. Case No. 5D 18

- 116

WAZIM NAWAZ KAMALUDDIN AND STATE OF FLORIDA

, Respondent s

.
________________________________/

Opinion filed March 9, 2018

Petition for Certiorari Review of Order from the Circuit Court for Marion County, T. Michael Johnson , Judge.

Joyce L. Miller, Assistant General Counsel, Department of Children and Families, Tavares , for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.

No Appearance for Respondent Wazim Nawaz Kamaluddin

.

EVANDER , J.

The Department of Children and Families ( “ DCF ” ) seeks certiorari review of a trial

court order committing Wazim Kamal uddin to its custody pursuant to section 916.13(1),2

Florida Statutes (2017). We conclude that t he trial court’s order departed from the

essential requirements of law

, and we grant the writ.

Kamaluddin was charged with battery of a person 65 years or older. 1 Based on a

competency evaluation performed by Dr. Harry Krop

, the trial court found Kamalu ddin

incompetent to proceed and ordered him committed to DCF ’s custody

. 2

Although DCF was not a party to the criminal case or the commitment proceeding

below, it has standing to seek certiorari review of the trial court’s order because it is

affected by the order

, and no other remedy is available. D ep ’ t of Children & Families v.

Lotton , 172 So. 3d 983, 985 (Fla. 5th DCA 2015).

Section 916.13, Florida Statutes

, provides:

(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 s urviving 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 refu sal poses a real and present threat of substantial harm to the d efendant’ s well

- being; or

1 § § 784.03(1)(a)

, 784.08(2)(c), Fla. Stat. (2017).

2 Section 916.12(2), Florida Statutes (2017), provides that a defendant “must be evaluated by no fewer than two experts before the court commits the defendant . . . , except if one expert finds that the defendant is incompetent to proceed and the parties sti pulate to that finding . . . .” The Appendix provided to us does not reflect the existence of a stipulation by the State and the defendant to accept the finding of a single expert. However, that issue was not raised in DCF’s petition.3 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 opportun ity f or improvement of the defendant’ s condition have been judged to be inappropriate; and

(c) There is a substantial probability that the menta l illness causing the defendant’ s incompetence will respond to treatment and the defendant will regain competen cy to proceed in the reasonably foreseeable future.

§ 916.13(1), Fla. Stat. (2017) (e mphasis added).

Here, as the State properly concedes, there was no evidence that the mental

illness causing Kamaluddin’s incompetence would respond to treatment and that

Kamaluddin would regain competency to proceed in the reasonably foreseeable future.

As a result, the trial court departed from the essential requirements of law when it ordered

Kamaluddin ’s inv oluntarily commitment

. See Dep ’t of Children & Familie s v. Ewell , 949

So. 2d 327 (Fla. 5th DCA 2007) (holding trial court could not commit incompetent

defendant to state hospital for treatment to restore him to competency absent clear and

convincing evide nce that there was substantial probability mental illness causing

defendant’s incompetence would respond to treatment and defendant would regain

comp etency in foreseeable future); Dep’ t of Children & Familie s v. Gilliland , 947 So. 2d

1262 (Fla. 5th DCA 200 7) (holding that where uncontradicted medical testimony

presented to trial court revealed that defendant suffered from dementia that would

become progressively worse and that there was little or no probability that defendant

would become competent in reaso nably foreseeable future, trial court departed from the4

essential requirements of law by ordering continued commitment of defendant to DCF);

Dep ’t of Children & Families v. Wehrwein , 942 So. 2d 947 (Fla. 5th DCA 2006) (holding

that trial court’s order comm itting defendant

, who had previously been adjudicated

incompetent to proceed to trial

, back to custody of DCF violated section 916.13(1), Florida

Statutes (2005) , where overwhelming evidence was that mental illness causing

defendant’s incompetency would no t respond to treatment and it was highly unlikely

defendant would ever respond to treatment ).

PETITION FOR WRIT OF CERTIORARI GRANTED; ORDER QUASHED;

REMANDED.

WALLIS and EDWARDS , JJ., concur.