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. 5D18-116

WAZIM NAWAZ KAMALUDDIN AND 

STATE OF FLORIDA,

Respondents.

________________________________/

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 Kamaluddin to its custody pursuant to section 916.13(1), 
2

Florida Statutes (2017). We conclude that the 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 Kamaluddin 

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. Dep’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 surviving 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 refusal 

poses a real and present threat of substantial harm to the 

defendant’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 

stipulate 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 opportunity for improvement of the defendant’s condition 

have been judged to be inappropriate; and

(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.

§ 916.13(1), Fla. Stat. (2017) (emphasis 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 involuntarily commitment. See Dep’t of Children & Families 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 evidence that there was substantial probability mental illness causing 

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

competency in foreseeable future); Dep’t of Children & Families v. Gilliland, 947 So. 2d 

1262 (Fla. 5th DCA 2007) (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 reasonably foreseeable future, trial court departed from the 
4

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 committing 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 not 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.