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. 5D22-1186

LT Case No. 2021-CF-012804-A-O 

OSMAR BRITO DESPAIGNE AND STATE OF FLORIDA, 

Respondents. 

_______________________________/

Opinion filed October 7, 2022

Petition for Writ of Certiorari Review of Order

from the Circuit Court for Orange County,

Tarlika Teresa Nunez-Navarro, Judge. 

T. Shane DeBoard, Regional Legal

Counsel, Orlando, for Petitioner.

Ashley Moody, Attorney General, 

Tallahassee, and Douglas T. Squire, 

Assistant Attorney General, Daytona 

Beach, for Respondent, State of Florida. 

Robert Wesley, Public Defender, 

and Robert Thompson Adams, IV, 

Assistant Public Defender,

Orlando, for Respondent, Osmar 

Brito Despaigne. 

PER CURIAM. 
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The Department of Children and Families (“DCF”) timely petitions this 

Court for a writ of certiorari, seeking to quash the trial court’s order 

involuntarily committing Osmar Brito Despaigne to DCF. We grant the 

petition. 

In February 2022, Despaigne was indicted for the first-degree murder 

of Shawn Manella. Due to concerns about Despaigne’s competency, the 

defense hired Dr. Valerie McClain to conduct a psychological evaluation. Dr. 

McClain found that: 

Mr. Despaigne presents with significant 

communication and cognitive deficits which impact 

his current competency and ability to benefit from 

competency training. His deficits appear to be 

extensive and he would benefit from a neurological 

evaluation to determine the origin and extent of his 

deficits. Based on this examiner’s interview and 

review of relevant history, it is this examiner’s opinion 

that he is not restorable.

The trial court ordered a second evaluation, conducted by Dr. Kyle 

Goodwin, who found Despaigne “nonresponsive and largely catatonic,” and 

concluded that “[a]bsent a drastic improvement in his functioning and mental 

state, it is likely that Mr. Despaigne is permanently incompetent to proceed.”

Neither report stated that Despaigne’s incompetence resulted from a 

diagnosed mental illness, and both opined that it was improbable his 

competence could be restored in the future. Based on the two reports, the 
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trial court found Despaigne incompetent to proceed and involuntarily 

committed him to DCF. In seeking certiorari relief, DCF argues that the trial 

court departed from the essential requirements of law, because Despaigne 

did not meet the criteria for involuntary commitment under section 916.13, 

Florida Statutes (2021). 

“To obtain a writ of certiorari, a petitioner must show that the nonfinal 

order entered is ‘(1) a departure from the essential requirements of the law, 

(2) resulting in material injury for the remainder of the case (3) that cannot

be corrected on postjudgment appeal.’” Golub v. Golub, 325 So. 3d 164, 170 

(Fla. 5th DCA 2021) (quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 

2011)). “As a general rule, certiorari is the proper vehicle for seeking this 

court’s review of orders committing an individual involuntarily.” Dep’t of Child. 

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

omitted). Section 916.13 requires clear and convincing evidence that, inter 

alia, (1) the defendant has a mental illness; and (2) 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)(a), (c), Fla. Stat.

Here, the written reports indicate neither. In fact, in addition to the 

absence of a mental illness diagnosis, both reports expressly stated that it 
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was unlikely Despaigne’s competence could be restored. It is well-settled 

that the involuntary commitment of a felony defendant is not appropriate 

when there is little or no probability that the defendant will become competent 

in the near future. See Dep’t of Child. & Fams. v. Campbell, 295 So. 3d 868, 

870 (Fla. 5th DCA 2020) (holding involuntary commitment improper when 

defendant’s future restoration to competency was “doubtful”); see also Dep’t 

of Child. & Fams. v. Gilliland, 947 So. 2d 1262, 1262–63 (Fla. 5th DCA 2007) 

(quashing involuntary commitment order where uncontradicted testimony 

established little or no probability of future competence); Dep’t of Child. & 

Fams. v. Wehrwein, 942 So. 2d 947, 949 (Fla. 5th DCA 2006). Therefore, 

Despaigne did not meet the criteria for involuntary commitment, and the trial 

court departed from the essential requirements of law by doing so. 

We grant DCF’s petition for writ of certiorari and remand for further 

proceedings pursuant to Florida Rules of Criminal Procedure 3.210(b) and/or 

3.212(d). 

PETITION GRANTED. 

COHEN, TRAVER and SASSO, JJ., concur.