## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 1 7

- 1 9 2 7

_____________________________

C OLUMBUS W ILLIAMS

,

Petitioner

,

v.

S TATE OF F LORIDA

,

Respondent

.

___________________________

Petition for Writ of Certiorari

— O riginal Jurisdiction

.

October 2, 2018

P ER C URIAM

.

Following his arrest, Columbus Williams filed a motion for discharge and termination of jurisdiction for incompetenc y and

non

- restorability, asserting that the intellectual disability underlying his inco mpetency was static and that he could not be
held on charges without any likelihood of becoming competent to stand trial. After a hearing, the trial court denied the motion, finding a substantial probability that Williams would regain competency in the rea sonably foreseeable future. Williams sought this Court’s review by filing a petition for wri t of certiorari, which

we now grant because the trial court’s findings are not supported by competent, substantial evidence.

I.

Williams was first charged in 200 2, was soon found incompetent due to an intellectual disability, and was admitted to2 a forensic facility that provide s competency training

. In 2007, the trial court dismissed the charge, finding that Williams was still incompetent after almost five years o f training and that there was “no reason to believe” he would become competent to stand
trial in the reasonably foreseeable future. Williams was involuntarily committed. Orders continuing Williams’ civil commitment were entered in 2009, 2012, 2013 , 2014, a nd 2015, all citing the seriousness of his intellectual disability.

Williams was charged with another crime in 2016. Dr.
Salvatore Blandino was then ordered to examine Williams’ competency, and did so after reviewing limited and miscellaneous
records. Dr . Blandino noted Williams’ mental health diagnoses, including illnesses and intellectual developmental disorder,
observed that he was “ obviously cognitively impaired ” during the examination, and found him incompetent. However, Dr. Blandino
also stressed th at Williams was overmedicated by an excessive regimen of psychotropic medications, which likely contributed to his poor performance during the examination. Dr. Blandino’s report concluded that contingent upon the stabilization of
Williams’ medicat ions and competency training, his prognosis was “guarded to fair” and a determination as to his likelihood of attaining competency would be possible in six to twelve months.

By the time the competency hearing commenced, Dr.
Blandino had reviewed additional records regarding Williams’ developmental services and competency , including those deeming
him non

- restorable due to an intellectual disability years prior

. Testifying for the State, Dr. Blandino explained that intellectual developmental disorder is a static cond ition that could not improve, and the fact that Williams was declared non

- restorable
based on this disorder , rather than any mental illnesses, meant that he would never attain competency. He further noted that his prior “guarded to fair” prognosis was base d on the chance that Williams’ incompetency was partially due to overmedication, but based on the information later learned, he understands no chance of attaining competency now exists regardless of which
medications Williams take s

. The only other evidence presented by the State was the testimony of Dr. Amanda Graham, who agreed that Williams had an intellectual disability

, and who had seen no indication that he had attained competency since 2002.3 The trial court held that Williams was incompetent, but
de nied his motion to discharge , declined to dismiss the charges, and ordered him to commence competency training. The trial

court did not find “any evidence ” that Williams’ competency would not be restored because “people’s conditions change,”
referenced Dr. Blandino’s prior “guarded to fair” prognosis, and concluded that clear and convincing evidence showed that Williams had a substantial likelihood of regaining competenc y in the reasonably foreseeable future.

II.

An incompetent person charged with a crim e may only be
held for the “ time necessary to determine whether there is a substantial probability ” that he or she may attain competency to proceed to trial. Jackson v. Indiana , 406 U.S. 715, 738 (1972). Appellate courts may review the trial court’s applic ation of these due process rights by common law certiorari and for competent,
substantial evidence. See Vasquez v. State , 496 So. 2d 818, 820 (Fla. 1986).

A defendant found incompetent due to an intellectual disability or autism may only be involuntarily committed for
competency training if, inter alia , there exists “a substantial probability that the intellectual disability or autism causing the defendant’s incompetence will respond to training and the defendant will regain competency to proceed in the r easonably foreseeable future.” § 916.302 (1)(d) , Fla. Stat. The trial court made the findings necessary to satisfy the statutory requirements, but competent, substantial evidence does not support them.

The only evidence the trial court cited in announcing its ruling was Dr. Blandino’ s report. It was error to interpret this report as supporting the conclusion that there exists a substantial likelihood of Williams attaining competency. Dr. Blandino’s report found that Williams was mentally disabled, his
disa bility was enhanced by the medications he was taking, and
that a determination as to his likelihood of attaining competency could only be made when his medications were stabilized; Dr.4 Blandino concluded that he could not make a determination for
six to tw elve months. Upon receiving additional information of Williams’ medical and legal history, Dr. Blandino was able to then determine that Williams would never attain competency to stand trial. In light of this testimony, t he non

- determination
made in Dr. Bla ndino’s prior report does not constitute competent, substantial evidence to support the trial court’ s finding of a substantial probability that Williams’ intellectual disability would soon improve and enable him to attain
competency. * Because Williams does not meet the criteria to be involuntarily committed pursuant to section 916.302, “the State must either institute civil commitment proceedings or release”
him. Mosher v. State , 876 So. 2d 1230, 1232 (Fla. 1st DCA 2004) (footnote omitted)

.

Lastly, we reje ct the State’s argument that Williams is not entitled to dismissal of his charges because the two

- year limit
under section 9 16.303(1), Florida Statutes, has yet to expire. Section 916.303(1) mandates dismissal “within a reasonable
time” after a determinati on of incompetency, “not to exceed 2 years,” unless the trial court specifies reasons indicating that the defendant will soon become competent. The reasonableness of time is in consideration of the prospects of restoring the defendant’s competency. “ Thus, a reasonable tim e has passed,
and the defendant’ s substantive right to dismissal of the criminal charge arises, when it becomes evident that the defendant cannot be restored to competency. ” Gonzalez v. State , 15 So. 3d 37, 40 (Fla. 2d DCA 2009) ; see also R oddenberry v. State , 898 So. 2d 1070, 1073 (Fla. 5th DCA 2005) ; cf. § 916.145, Fla. Stat.

* We note t hat Dr. Blandino’s report was based on a limited review of Williams’ medical history, while he testified at the hearing after he had a more complete understanding of Williams’ history. It is unnecessary to determine whether such a report
could constitute s ufficient evidence to support a holding in some
situations

— see M.A.B. v. Dep ’ t of Health & Rehab. Servs

. , 630 So. 2d 1252, 1255 (Fla. 1st DCA 1994) (“An expert’ s opinion which is based upon incomplete or inaccurate facts cannot be competent
substantial evi dence. ”)

— because here, the report’s conclusion does not support the trial court’s finding.5 (requiring dismissal for those incompetent due to mental
illnesses “if the defendant remains incompetent for 5 continuous, uninterrupted years”).

III.

Williams was declared incompetent in 2002 based on his intellectual developmental disorder and, in 2007, his continued incompetency resulted in the dismissal of hi s charges and civil commitment. Following his 2016 arrest, Williams was again found incompetent, with no indication that he had attained competency since 2002. At a hearing, the State’s evidence demonstrated that Williams’ disorder would never improve and he would never attain competency. It was error to find a substantial probability that Williams would atta in competency in the reasonably foreseeable future based on a report making no
such determination , particularly in the face of direct evidence to the contrary

. Williams must be civilly committed or released, and his charges dismissed.

Therefore, we G RANT Williams’ petition for writ of certiorari
and Q UASH the trial court’s order.

R AY

, B ILBREY

, and W INOKUR

, JJ., concur

.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331

.

__ ___________________________

Andy Thomas, Public Defender, and Marcia Perlin, Assistant Public Defender, Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General, and Holly Simcox, Assistant Attorney General, T allahassee, for Respondent.