Supreme Court of Florida

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No. SC21-626

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IN RE: AMENDMENTS TO FLORIDA RULE OF JUVENILE 

PROCEDURE 8.095.

December 16, 2021

PER CURIAM.

This matter is before the Court for consideration of proposed 

amendments to Florida Rule of Juvenile Procedure 8.095 (Procedure 

When Child Believed to be Incompetent or Insane). See Fla. R. Gen. 

Prac. & Jud. Admin. 2.140(b). We have jurisdiction. See art. V, 

§ 2(a), Fla. Const.

The Florida Bar’s Juvenile Court Rules Committee (Committee) 

proposes substantial amendments to rule 8.095. The amendments 

reorganize the provisions of the rule. They also clarify the 

procedure the court is to follow when it must determine whether a 

child is incompetent at the time of delinquency proceedings or was 

insane at the time of a delinquent act or violation of probation. The 

Board of Governors of The Florida Bar unanimously approved the 
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Committee’s proposal, which the Court published in the July 2021 

issue of The Florida Bar News. One comment was received from the 

Florida Public Defender Association (FPDA). The Committee filed a 

response to the FPDA’s comment.

Having considered the Committee’s report, FPDA’s comment, 

and the Committee’s response, the Court hereby adopts the 

Committee’s proposed amendments to rule 8.095 with minor

modifications.1

First, subdivision (a) is retitled as “Proceedings Barred During 

Incompetency” and new text is added to clarify that delinquency 

proceedings are barred when a juvenile is incompetent. The text of 

former subdivision (a) is moved to new subdivision (b) (Procedure 

for Children Believed to be Incompetent During a Delinquency 

Proceeding), which sets out the procedure to be followed when a 

juvenile is believed to be incompetent at the time of the juvenile 

proceedings. Next, new subdivision (c) (Procedure for Children 

Believed to be Insane at Time of Delinquent Act or Violation of 

1. The Court’s modifications are largely technical in nature or

add titles to subdivisions for clarity and consistency.
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Probation) sets forth the procedure to be followed when a juvenile is 

believed to have been insane at the time of the delinquent act or 

probation violation, what had previously been the subject of former 

subdivision (b). Finally, former subdivisions (c) (Appointment of 

Expert Witnesses; Detention of Child for Examination), (d) 

(Competence to Proceed; Scope of Examination and Report), and (e) 

(Procedures After Judgment of Not Guilty by Reason of Insanity), 

which have been deleted, are reorganized under new subdivisions 

(b) and (c), as applicable.

Accordingly, Florida Rule of Juvenile Procedure 8.095 is

amended as set forth in the appendix to this opinion. New language 

is indicated by underscoring; deletions are indicated by struckthrough type. The amendments shall become effective on 

January 1, 2022, at 12:01 a.m.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, 

COURIEL, and GROSSHANS, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER 

THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Juvenile Procedure
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Candice K. Brower, Chair, Juvenile Court Rules Committee,

Gainesville, Florida, Matthew Charles Wilson, Past Chair, Juvenile 

Court Rules Committee, Tallahassee, Florida, Joshua E. Doyle, 

Executive Director, and Mikalla Andies Davis, Staff Liaison, The 

Florida Bar, Tallahassee, Florida,

for Petitioner

Hon. Carlos J. Martinez and John Eddy Morrison on behalf of the 

Florida Public Defender Association, Inc., Miami, Florida,

Responding with comments
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APPENDIX

RULE 8.095. PROCEDURE WHEN CHILD BELIEVED TO BE 

INCOMPETENT OR INSANE

(a) Incompetency At Time of Adjudicatory Hearing or 

Hearing on Petition Alleging Violation of Juvenile Probation in 

Delinquency Cases. Proceedings Barred During Incompetency. A 

child accused of a delinquent act or violation of probation who is 

mentally incompetent to proceed at any material stage of a 

delinquency proceeding shall not be proceeded against while 

incompetent. These proceedings shall be tolled upon the filing of a 

motion or order pursuant to subdivision (b)(1) until a finding by the 

court that the child is competent to proceed.

(b) Procedure for Children Believed to be Incompetent 

During a Delinquency Proceeding.

(1) Motion and Order.

(A) Child’s Motion. A written motion for examination of 

the child made by counsel for the child shall contain a certificate of 

counsel that the motion is made in good faith and on reasonable 

grounds to believe that the child is incompetent to proceed. To the 

extent that it does not invade the lawyer-client privilege, the motion 

shall contain a recital of the specific facts, observations of and/or

conversations with the child that have formed the basis for the 

motion.

(B) State’s Motion. A written motion for examination of 

the child made by counsel for the state shall contain a certificate of 

counsel that the motion is made in good faith and on reasonable 

grounds to believe the child is incompetent to proceed and shall 

include a recital of the specific facts that have formed the basis for 

the motion, including a recitation of the observations of and 

statements of the child that have caused the state to fileformed the 

basis for the motion.
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(C) Court Order. The court may on its own motion order 

the child to be examined if the court believes the child is 

incompetent to proceed. The order shall include a recitation of the 

specific facts, including any observations or statements of the child 

that the court believes are relevant to the issue of incompetency.

(2) Speedy Trial Tolled. Upon the filing of a motion 

suggesting the child to be incompetent to proceed or upon an order 

of the court finding a child incompetent to proceed, speedy trial 

shall be tolled until a subsequent finding of the court that the child 

is competent to proceed.

(3) Child Found Competent to Proceed. If at the hearing 

provided for in subdivision (a)(2) the child is found to be competent 

to proceed with an adjudicatory hearing, the court shall enter an 

order so finding and proceed accordinglyDetention. This rule shall in 

no way be construed to add any detention powers not provided by 

statute or case law.

(4) Setting Hearing. If at any time prior to or during the 

adjudicatory hearing or hearing on a violation of juvenile probation 

the court has reasonable grounds to believe the child named in the 

petition may be incompetent to proceed with an adjudicatory 

hearing, the court on its own motion or motion of counsel for the 

child or the stateUpon the filing of a motion or order pursuant to 

subdivision (b)(1), the court shall immediately stay the proceedings 

and fix a time for a hearing for the determination of the child’s 

mental conditionschedule a hearing as expeditiously as possible to 

determine whether the child is competent.

(4) Child Found Incompetent to Proceed. If at the hearing 

provided for in subdivision (a)(2) the child is found to be 

incompetent to proceed, the child must be adjudicated incompetent 

to proceed and may be involuntarily committed as provided by law 

to the Department of Children and Families for treatment upon a 

finding of clear and convincing evidence that:
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(A) The child is mentally ill or intellectually disabled 

and because of the mental illness or intellectual disability of the 

child:

(i) the child is manifestly incapable of surviving 

with the help of willing and responsible family or friends, including 

available alternative services, and without treatment the child is 

likely to either suffer from neglect or refuse to care for himself or 

herself, and such neglect or refusal poses a real and present threat 

of substantial harm to the child’s well-being; or

(ii) there is a substantial likelihood that in the 

near future the child will inflict serious bodily harm on himself or 

herself or others, as evidenced by recent behavior causing, 

attempting, or threatening such harm; and

(B) All available less restrictive treatment alternatives, 

including treatment in community residential facilities or 

community inpatient settings which would offer an opportunity for 

improvement of the child’s condition are inappropriate.

(5) Hearing on Competency. Not later than 6 months after 

the date of commitment, or at the end of any period of extended 

treatment or training, or at any time the service provider determines 

the child has attained competency or no longer meets the criteria 

for commitment, the service provider must file a report with the 

court and all parties. Upon receipt of this report, the court shall set 

a hearing to determine the child’s competency.

(A) If the court determines that the child continues to 

remain incompetent, the court shall order appropriate 

nondelinquent hospitalization or treatment in conformity with this 

rule and the applicable provisions of chapter 985, Florida Statutes.

(B) If the court determines the child to be competent, it 

shall enter an order so finding and proceed accordingly.Expert 

Witnesses.
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(A) Non-confidential Evaluation. When a question has 

been raised concerning the competency of the child, the court may 

on its own motion, and shall on motion of the state or the child, 

appoint no more than 3, nor fewer than 2, disinterested, qualified 

experts to examine the child as to the child’s competency. Attorneys 

for the state and the child may be present at the examination.

(B) Confidential Evaluation. When counsel has reason 

to believe that the child may be incompetent to proceed, counsel 

may retain a qualified expert to examine the child. The expert shall 

report only to counsel for the child, and all matters related to the 

expert fall under the lawyer-client privilege.

(C) Intellectual Disability or Autism Evaluation. When 

counsel has reason to believe the child is incompetent to proceed 

because of intellectual disability or autism, the court shall order the 

Agency for Persons With Disabilities to examine the child to 

determine if the child meets the definition of intellectual disability 

or autism in section 393.063, Florida Statutes, and, if so, whether 

the child is competent to proceed.

(6) Commitment. Each child who has been adjudicated 

incompetent to proceed and who meets the criteria for commitment 

in subdivision (a)(4) must be committed to the Department of 

Children and Families. The department must train or treat the child 

in the least restrictive alternative consistent with public safety. Any 

commitment of a child to a secure residential program must be to a 

program separate from adult forensic programs. If the child attains 

competency, case management and supervision of the child will be 

transferred to the Department of Juvenile Justice to continue 

delinquency proceedings. The court retains authority, however, to 

order the Department of Children and Families to provide continued 

treatment to maintain competency.

(A) A child adjudicated incompetent because of 

intellectual disability may be ordered into a program designated by 

the Department of Children and Families for intellectually disabled 

children.
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(B) A child adjudicated incompetent because of mental 

illness may be ordered into a program designated by the 

Department of Children and Families for mentally ill children.Scope 

of Examination and Report. The experts shall examine the child with 

respect to the issue of competence to proceed as specified by the 

following factors:

(A) Criteria for Determining Competence. The experts 

first shall consider factors related to whether the child meets the 

criteria for competence to proceed; that is, whether the child has 

sufficient present ability to consult with counsel with a reasonable 

degree of rational understanding and whether the child has a 

rational and factual understanding of the present proceedings.

(B) Relevant Factors. In considering the competence of 

the child to proceed, the examining experts shall consider and 

include in their reports the child's capacity to:

(i) appreciate the charges or allegations against 

the child;

(ii) appreciate the range and nature of possible 

penalties that may be imposed in the proceedings against the child, 

if applicable;

(iii) understand the adversary nature of the legal 

process;

(iv) disclose to counsel facts pertinent to the 

proceedings at issue;

(v) display appropriate courtroom behavior; and

(vi) testify relevantly.

The experts also may consider any other factors 

they deem to be relevant.
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(C) Written Report. Any report shall be in writing and 

include a finding as to whether the child is competent or 

incompetent to proceed and include the basis for the determination. 

The report shall also:

(i) identify the specific matters referred for 

evaluation;

(ii) describe the procedures, techniques, and tests 

used in the examination and the purposes of each;

(iii) state the expert’s clinical observations, 

opinions, and opinions on each issue referred for evaluation by the 

court and indicate specifically those issues, if any, on which the 

expert could not give an opinion; and

(iv) identify the sources of information used by the 

expert and present the factual basis for the expert’s clinical 

opinions.

(D) Treatment Recommendations. Any report finding 

that a child is incompetent to proceed, must include any 

recommended treatment for the child to attain competence to 

proceed and a recommendation as to whether residential or 

nonresidential treatment or training is required. In considering 

issues related to treatment, the experts shall report on the 

following:

(i) the mental illness, intellectual disability, or 

mental age causing incompetence;

(ii) the treatment or education appropriate for the 

mental illness or intellectual disability of the child and an 

explanation of each of the possible treatment or education 

alternatives, in order of recommendation;

(iii) the availability of acceptable treatment or 

competency restoration training. If treatment or competency 
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restoration training is available in the community, the experts shall 

so state in the report;

(iv) the likelihood of the child attaining 

competence under the treatment or competency restoration training 

recommended, an assessment of the probable duration of the 

treatment required to restore competence, and the probability that 

the child will attain competence to proceed in the foreseeable 

future; and

(v) whether the child meets the criteria for 

involuntary commitment to a secure facility pursuant to subdivision 

(b)(8)(B).

(7) Continuing Jurisdiction and Dismissal of Jurisdiction.

(A) If a child is determined to be incompetent to 

proceed, the court shall retain jurisdiction of the child for up to 2 

years after the date of the order of incompetency, with reviews at 

least every 6 months to determine competency. If the court 

determines at any time that the child will never become competent 

to proceed, the court may dismiss the delinquency petition or 

petition alleging violation of juvenile probation.

(B) If, at the end of the 2-year period following the date 

of the order of incompetency, the child has not attained competency 

and there is no evidence that the child will attain competency 

within a year, the court must dismiss the delinquency petition.

(C) If necessary, the court may order that proceedings 

under chapter 393 or 394, Florida Statutes, be instituted. Such 

proceedings must be instituted no less than 60 days before the 

dismissal of the delinquency petition. The juvenile court may 

conduct all proceedings and make all determinations under chapter 

393 or 394, Florida Statutes.Competency Evidence.

(A) The information contained in any motion for 

determination of competence to proceed or in any report filed under 

this rule as it relates solely to the issue of competence to proceed, 
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and any information elicited during a hearing on competence to 

proceed shall be used only for the purposes of the competency 

hearing.

(B) The child waives this provision by using the report, 

or any parts of it, in any proceeding for any other purpose. If so 

waived, the disclosure or use of the report, or any portion of it, shall 

be governed by the applicable rules of evidence and juvenile 

procedure. If a part of a report is used by the child, the state may 

request the production of any other portion that, in fairness, ought 

to be considered.

(C) The appointment of experts by the court shall not 

preclude the state or the child from calling other expert witnesses to 

testify during a hearing on competency. Other competent evidence 

may be introduced at the hearing.

(8) Treatment Alternatives to Commitment. If a child who is 

found to be incompetent does not meet the commitment criteria of 

subdivision (a)(4), the court shall order the Department of Children 

and Families to provide appropriate treatment and training in the 

community. All court-ordered treatment must be in the least 

restrictive setting consistent with public safety. Any residential 

program must be separate from an adult forensic program. If a 

child is ordered to receive such services, the services shall be 

provided by the Department of Children and Families. The 

competency determination must be reviewed at least every 6 

months, or at the end of any extended period of treatment or 

training, and any time the child appears to have attained 

competency or will never attain competency, by the service provider. 

A copy of a written report evaluating the child’s competency must 

be filed by the provider with the court, the Department of Children 

and Families, the Department of Juvenile Justice, the state, and 

counsel for the child.Competency Hearing.

(A) Competence to Proceed—Hearing.

(i) All determinations of competency must be 

made at a hearing with findings of fact based on testimony, other 
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competent evidence, or stipulated evidence of the child’s mental 

condition. The court must conduct the hearing in the presence of 

the child unless the child’s appearance is waived and the court 

finds the child’s presence is unnecessary to make the determination 

of competency.

 

(ii) Any expert appointed by the court may be 

called by either party or the court. The appointment of experts by 

the court shall not preclude the state or the child from calling other 

witnesses to testify at the competency hearing.

(iii) The moving party has the burden to prove that 

the child is not competent to proceed. The standard of proof shall 

be by a preponderance of the evidence.

(iv) The child is presumed competent to proceed 

unless the child has been adjudicated incompetent in a prior case 

before the court and competency has not been restored.

(B) Findings by the Court.

(i) If the court finds the child incompetent to

proceed, the court must also make a finding as to whether the child 

is incompetent because of mental illness, intellectual disability, 

autism, age, immaturity, or for any other reason specified by the 

court.

a. After the court makes a finding as to the 

reason of the incompetency, the court must determine whether the 

child qualifies under subdivision (b)(8)(C) to be committed to the 

Department of Children and Families for treatment or training.

b. If the court commits the child to the 

Department of Children and Families, the court then must 

determine whether the child meets the criteria for involuntary 

commitment to a secure facility. The determination whether the 

child meets the criteria for involuntary commitment to a secure 

facility shall be made by clear and convincing evidence.
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(ii) If the court finds the child competent to 

proceed, the court shall enter a written order so finding and proceed 

accordingly.

(C) Child Found Incompetent to Proceed because of 

Mental Illness, Intellectual Disability, or Autism.

(i) If at the competency hearing the child is found 

to be incompetent to proceed because of mental illness, intellectual 

disability, or autism, the child must be adjudicated incompetent to 

proceed. If the child is adjudicated incompetent and the alleged 

delinquent act or violation of law is a felony, the child must be 

committed to the Department of Children and Families for 

treatment and competency restoration.

 

(ii) The court must also determine whether the 

child meets the criteria for involuntary commitment to a secure 

facility. A child may be placed in a secure facility or program if the 

court makes a finding by clear and convincing evidence that:

a. the child is manifestly incapable of 

surviving with the help of willing and responsible family or friends, 

including available alternative services, and without treatment or 

training the child is likely to either suffer from neglect or refuse to 

care for himself or herself, and such neglect or refusal poses a real 

and present threat of substantial harm to the child’s well-being; or

b. there is a substantial likelihood that in 

the near future the child will inflict serious bodily harm on himself 

or herself or others, as evidenced by recent behavior causing, 

attempting, or threatening such harm; and

c. all available less restrictive treatment 

alternatives, including treatment or training in community 

residential facilities or community inpatient settings which would 

offer an opportunity for improvement of the child’s condition are 

inappropriate.
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(D) Child Found Incompetent to Proceed because of 

Age, Immaturity, or for Any Reason Other Than for Mental Illness, 

Intellectual Disability, or Autism. A child who has been adjudicated 

incompetent to proceed because of age or immaturity, or for any 

reason other than for mental illness, intellectual disability, or 

autism, cannot be committed to the Department of Children and 

Families for treatment and competency restoration.

(E) Child Found Incompetent to Proceed Whose Alleged 

Delinquent Act or Violation of Law is a Misdemeanor or Municipal 

Ordinance. A child whose alleged delinquent act or violation of law 

is a misdemeanor or municipal ordinance cannot be committed to 

the Department of Children and Families for treatment and 

competency restoration.

(9) Speedy Trial Tolled. Upon the filing of a motion by the 

child’s counsel alleging the child to be incompetent to proceed or 

upon an order of the court finding a child incompetent to proceed, 

speedy trial shall be tolled until a subsequent finding of the court 

that the child is competent to proceed. Proceedings under this 

subdivision initiated by the court on its own motion or the state’s 

motion may toll the speedy trial period pursuant to rule 

8.090(e).Secure Placement.

(A) Each child who has been adjudicated incompetent 

to proceed and who meets the criteria for involuntary commitment 

to a secure facility in subdivision (b)(8) must be committed to the 

Department of Children and Families. Any commitment of a child to 

a secure residential program must be to a program separate from 

adult forensic programs.

(B) A child adjudicated incompetent because of mental 

illness may be ordered into a program designated by the 

Department of Children and Families for mentally ill children.

(C) A child adjudicated incompetent because of 

intellectual disability or autism may be ordered into a program 

designated by the Department of Children and Families for 

intellectually disabled or autistic children.
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(D) The competency determination must be reviewed by 

the service provider at least every 6 months, or any time the child 

appears to have attained competency or will never attain 

competency. The service provider must file a written report 

evaluating the child’s competency and must provide copies to the 

Department of Children and Families, the Department of Juvenile 

Justice, the state, and counsel for the child.

(E) If a court determines a child to be competent, case 

management and supervision of the child will be transferred to the 

Department of Juvenile Justice to continue delinquency 

proceedings. The court retains authority, however, to order the 

Department of Children and Families to provide continued 

treatment to maintain competency.

(10) Community Treatment.

(A) If a child who is found to be incompetent does not 

meet the involuntary commitment to a secure facility criteria of 

subdivision (b)(8)(B), the court shall order the Department of 

Children and Families to provide appropriate treatment and 

training in the community. All court-ordered treatment must be in 

the least restrictive setting consistent with public safety. Any 

treatment program must be separate from an adult treatment 

program. If a child is ordered to receive such services, the services 

shall be provided by the Department of Children and Families.

(B) The competency determination must be reviewed by 

the service provider at least every 6 months, or any time the child 

appears to have attained competency or will never attain 

competency. The service provider must file a written report

evaluating the child’s competency and must provide copies to the 

Department of Children and Families, the Department of Juvenile 

Justice, the state, and counsel for the child.

(11) Competency Restoration Review. Not later than 6 months 

after the date of commitment, or at the end of any period of 

extended treatment or competency restoration, or at any time the 
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service provider determines the child has attained competency or no 

longer meets the criteria for involuntary commitment to a secure 

facility, the service provider must file a report with the court and all 

parties. Upon receipt of this report, the court shall set a hearing 

within a reasonable time to determine the child’s competency. If the 

child remains incompetent to proceed, the court shall determine 

whether the child meets the criteria for commitment to a secure 

facility.

(A) If the court determines the child to be incompetent, 

the court shall order continued competency restoration and 

training. A child may only be involuntarily committed to a secure 

facility if the court finds the child meets the criteria outlined in 

subdivision (b)(8)(B).

(B) If the court determines the child to be competent, it 

shall enter an order so finding and proceed accordingly.

(12) Continuing Jurisdiction and Dismissal of Jurisdiction.

(A) If a child is determined to be incompetent to 

proceed, the court shall retain jurisdiction of the child for up to 2 

years after the date of the order of incompetency. If the court 

determines at any time that the child will never become competent 

to proceed, the court may dismiss the case.

(B) If, at the end of the 2-year period following the date 

of the order of incompetency, the child has not attained competency 

and there is no evidence that the child will attain competency 

within a year, the court must dismiss the case.

(C) If necessary, the court may order that proceedings 

under chapter 393 or 394, Florida Statutes, be instituted. Such 

proceedings must be instituted no less than 60 days before the 

dismissal of the delinquency petition. The juvenile court may 

conduct all proceedings and make all determinations under chapter 

393 or 394, Florida Statutes.
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(b) Insanity at Time of Delinquent Act or Violation of 

Juvenile Probation.

(1) If the child named in the petition intends to plead 

insanity as a defense, the child shall advise the court in writing not 

less than 10 days before the adjudicatory hearing and shall provide 

the court with a statement of particulars showing as nearly as 

possible the nature of the insanity expected to be proved and the 

names and addresses of witnesses expected to prove it. Upon the 

filing of this statement, on motion of the state, or on its own motion, 

the court may cause the child to be examined in accordance with 

the procedures in this rule.

(2) The court, upon good cause shown and in its discretion, 

may waive these requirements and permit the introduction of the 

defense, or may continue the hearing for the purpose of an 

examination in accordance with the procedures in this rule. A 

continuance granted for this purpose will toll the speedy trial rule 

and the limitation on detention pending adjudication.

(c) Procedure for Children Believed to be Insane at Time 

of Delinquent Act or Violation of Probation.

(1) Expert to Aid Defense Counsel. When in any delinquency 

case a child is adjudged indigent or partially indigent, and is not 

represented by the public defender or regional counsel, and counsel 

has reason to believe that the child may have been insane at the 

time of the offense or probation violation, counsel may so inform the 

court who shall appoint 1 expert to examine the child in order to 

assist counsel in the preparation of the defense. The expert shall 

report only to the attorney for the child and matters related to the 

expert shall fall under the lawyer-client privilege.

(2) Notice of Intent to Rely on the Insanity Defense. When in 

any delinquency case it shall be the intention of the child to rely on 

the defense of insanity either at an adjudicatory hearing or violation 

of probation hearing, no evidence offered by the child for the 

purpose of establishing that defense shall be admitted in the case 
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unless advance notice in writing of the defense shall have been 

given by the child as provided in this rule.

(3) Time for Filing Notice. The child shall give notice of intent 

to rely on the defense of insanity not less than 10 days before the 

adjudicatory hearing or violation of probation hearing and shall 

provide the court with a statement of particulars showing as nearly 

as possible the nature of the insanity expected to be proved and the 

names and addresses of witnesses expected to prove it.

(4) Court Ordered Evaluations. On the filing of such notice 

and on motion of the state, the court shall order the child to be 

examined by the state’s mental health expert as to the sanity or 

insanity of the child at the time of the alleged offense or probation 

violation. Attorneys for the state and the child may be present at 

the examination.

(5) Waiver of the Time to File. On good cause shown for the 

omission of the notice of intent to rely on the defense of insanity, or 

any mental health defense, the court may in its discretion grant the 

child 10 days to comply with the notice requirement. If leave is 

granted and the child files the notice, the child is deemed 

unavailable to proceed. If the adjudicatory hearing has already 

commenced, the court, only on motion of the child, may declare a 

mistrial in order to permit the child to raise the defense of insanity 

pursuant to this rule. Any motion for mistrial shall constitute a 

waiver of the child’s right to any claim of former jeopardy arising 

from the uncompleted trial.

(6) Speedy Trial. A continuance granted for this purpose will 

toll speedy trial.

(7) Detention. This rule shall in no way be construed to add 

any detention powers not provided by statute or case law.

(8) Experts. Once listed as a witness, any experts appointed 

by the court may be summoned to testify at the adjudicatory 

hearing or violation of probation hearing. Other evidence regarding 

the child’s insanity or mental condition may be introduced by either 
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party. Each expert who has examined the child under this section 

shall state his or her opinion regarding the child’s sanity.

 

(9) Written Opinions of Experts. Any written report submitted 

by the experts shall:

(A) identify the specific matters referred for evaluation;

(B) describe the procedures, techniques, and tests used 

in the examination and the purposes of each;

(C) state the expert’s clinical observations and opinions 

as to the child’s mental status; and

(D) identify the sources of information used by the 

expert and present the factual basis for the expert’s clinical 

opinions.

(10) Burden. The child has the burden of proving the defense 

of insanity by clear and convincing evidence. Insanity is established 

when:

(A) The child had a mental infirmity, disease, or defect; 

and

(B) Because of this condition, the child:

(i) Did not know what he or she was doing or its 

consequences; or

(ii) Although the child knew what he or she was 

doing and its consequences, the child did not know that what he or 

she was doing was wrong.

(11) Procedures after Judgment of Not Guilty by Reason of 

Insanity.
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(A) When the child is found not guilty of the delinquent 

act or violation of probation because of insanity, the court shall 

enter such a finding and order.

(B) After finding the child not guilty by reason of 

insanity, the court shall conduct a hearing to determine if the child 

presently meets the statutory criteria for involuntary commitment 

to a residential psychiatric facility as governed by the provisions of 

chapters 985, 393 or 394. If the court determines that the required 

criteria have been met, the child shall be committed by the juvenile 

court to the Department of Children and Families for immediate 

placement in a residential psychiatric facility.

(C) If the court determines that such commitment 

criteria have not been established, the court shall order that the 

child receive recommended and appropriate treatment at an 

outpatient facility or service as governed by the provisions of 

chapters 985, 393 or 394, unless the court determines that 

treatment is not needed. If such a determination is made, the court 

shall discharge the child.

(D) The requests for discharge or continued involuntary 

hospitalization of the child shall be directed to the court that 

committed the child.

(E) If a child is not committed to a residential 

psychiatric facility and has been ordered to receive appropriate 

treatment at an outpatient facility or service and it appears during 

the course of the ordered treatment that treatment is not being 

provided or that the child now meets the criteria for involuntary 

commitment, the court shall conduct a hearing as governed by the 

provisions of chapters 985, 393 or 394. If the court determines that 

the child no longer requires treatment at an outpatient facility or 

service, the court shall enter an order discharging the child.

(F) During the time the child is receiving treatment, 

either by hospitalization or through an outpatient facility or service, 

any party may request the court to conduct a hearing to determine 
- 22 -

the nature, quality, and need for continued treatment. The hearing 

shall be governed by the provisions of chapters 985, 393 or 394.

(G) No later than 30 days before reaching age 19, a 

child still under supervision of the court under this rule shall be 

afforded a hearing. At the hearing, a determination shall be made 

as to the need for continued hospitalization or treatment. If the 

court determines that continued care is appropriate, proceedings 

shall be initiated under chapters 393 or 394, Florida Statutes. If the 

court determines further care to be unnecessary, the court shall 

discharge the child.

(c) Appointment of Expert Witnesses; Detention of Child 

for Examination.

(1) When a question has been raised concerning the sanity 

or competency of the child named in the petition and the court has 

set the matter for an adjudicatory hearing, hearing on violation of 

juvenile probation, or a hearing to determine the mental condition 

of the child, the court may on its own motion, and shall on motion 

of the state or the child, appoint no more than 3, nor fewer than 2, 

disinterested qualified experts to examine the child as to 

competency or sanity of the child at the time of the commission of 

the alleged delinquent act or violation of juvenile probation. 

Attorneys for the state and the child may be present at the 

examination. An examination regarding sanity should take place at 

the same time as the examination into the competence of the child 

to proceed, if the issue of competency has been raised. Other 

competent evidence may be introduced at the hearing. The 

appointment of experts by the court shall not preclude the state or 

the child from calling other expert witnesses to testify at the 

adjudicatory hearing, hearing on violation of juvenile probation, or 

at the hearing to determine the mental condition of the child.

(2) The court only as provided by general law may order the 

child held in detention pending examination. This rule shall in no 

way be construed to add any detention powers not provided by 

statute or case law.
- 23 -

(3) When counsel for a child adjudged to be indigent or 

partially indigent, whether public defender or court appointed, shall 

have reason to believe that the child may be incompetent to proceed 

or may have been insane at the time of the alleged delinquent act or 

juvenile probation violation, counsel may so inform the court. The 

court shall appoint 1 expert to examine the child to assist in the 

preparation of the defense. The expert shall report only to counsel 

for the child, and all matters related to the expert shall be deemed 

to fall under the lawyer-client privilege.

(4) For competency evaluations related to intellectual 

disability, the court shall order the Developmental Services Program 

Office of the Department of Children and Families to examine the 

child to determine if the child meets the definition of intellectual 

disability in section 393.063, Florida Statutes, and, if so, whether 

the child is competent to proceed or amenable to treatment through 

the Department of Children and Families’ intellectual disability 

services or programs.

(d) Competence to Proceed; Scope of Examination and 

Report.

(1) Examination by Experts. On appointment by the court, 

the experts shall examine the child with respect to the issue of 

competence to proceed as specified by the court in its order 

appointing the experts.

(A) The experts first shall consider factors related to 

whether the child meets the criteria for competence to proceed; that 

is, whether the child has sufficient present ability to consult with 

counsel with a reasonable degree of rational understanding and 

whether the child has a rational and factual understanding of the 

present proceedings.

(B) In considering the competence of the child to 

proceed, the examining experts shall consider and include in their 

reports the child’s capacity to:
- 24 -

(i) appreciate the charges or allegations against 

the child;

(ii) appreciate the range and nature of possible 

penalties that may be imposed in the proceedings against the child, 

if applicable;

(iii) understand the adversary nature of the legal 

process;

(iv) disclose to counsel facts pertinent to the 

proceedings at issue;

(v) display appropriate courtroom behavior; and

(vi) testify relevantly.

The experts also may consider any other factors they 

deem to be relevant.

(C) Any report concluding that a child is not competent 

must include the basis for the competency determination.

(2) Treatment Recommendations. If the experts find that the 

child is incompetent to proceed, they shall report on any 

recommended treatment for the child to attain competence to 

proceed. A recommendation as to whether residential or 

nonresidential treatment or training is required must be included. 

In considering issues related to treatment, the experts shall report 

on the following:

(A) The mental illness, intellectual disability, or mental 

age causing incompetence.

(B) The treatment or education appropriate for the 

mental illness or intellectual disability of the child and an 

explanation of each of the possible treatment or education 

alternatives, in order of recommendation.
- 25 -

(C) The availability of acceptable treatment or 

education. If treatment or education is available in the community, 

the experts shall so state in the report.

(D) The likelihood of the child attaining competence 

under the treatment or education recommended, an assessment of 

the probable duration of the treatment required to restore 

competence, and the probability that the child will attain 

competence to proceed in the foreseeable future.

(E) Whether the child meets the criteria for involuntary 

hospitalization or involuntary admissions to residential services 

under chapter 985, Florida Statutes.

(3) Insanity. If a notice of intent to rely on an insanity 

defense has been filed before an adjudicatory hearing or a hearing 

on an alleged violation of juvenile probation, when ordered by the 

court the experts shall report on the issue of the child’s sanity at 

the time of the delinquent act or violation of juvenile probation.

(4) Written Findings of Experts. Any written report submitted 

by the experts shall:

(A) identify the specific matters referred for evaluation;

(B) describe the procedures, techniques, and tests used 

in the examination and the purposes of each;

(C) state the expert’s clinical observations, findings, 

and opinions on each issue referred for evaluation by the court and 

indicate specifically those issues, if any, on which the expert could 

not give an opinion; and

(D) identify the sources of information used by the 

expert and present the factual basis for the expert’s clinical findings 

and opinions.

(5) Limited Use of Competency Evidence.
- 26 -

(A) The information contained in any motion by the 

child for determination of competency to proceed or in any report 

filed under this rule as it relates solely to the issues of competency 

to proceed and commitment, and any information elicited during a 

hearing on competency to proceed or commitment held under this 

rule, shall be used only in determining the mental competency to 

proceed, the commitment of the child, or other treatment of the 

child.

(B) The child waives this provision by using the report, 

or any parts of it, in any proceeding for any other purpose. If so 

waived, the disclosure or use of the report, or any portion of it, shall 

be governed by the applicable rules of evidence and juvenile 

procedure. If a part of a report is used by the child, the state may 

request the production of any other portion that, in fairness, ought 

to be considered.

(e) Procedures After Judgment of Not Guilty by Reason 

of Insanity.

(1) When the child is found not guilty of the delinquent act 

or violation of juvenile probation because of insanity, the court shall 

enter such a finding and judgment.

(2) After finding the child not guilty by reason of insanity, 

the court shall conduct a hearing to determine if the child presently 

meets the statutory criteria for involuntary commitment to a 

residential psychiatric facility.

(A) If the court determines that the required criteria 

have been met, the child shall be committed by the juvenile court to 

the Department of Children and Families for immediate placement 

in a residential psychiatric facility.

(B) If the court determines that such commitment 

criteria have not been established, the court, after hearing, shall 

order that the child receive recommended and appropriate 

treatment at an outpatient facility or service.
- 27 -

(C) If the court determines that treatment is not 

needed, it shall discharge the child.

(D) Commitment to a residential psychiatric facility of a 

child adjudged not guilty by reason of insanity shall be governed by 

the provisions of chapters 985 or 394, Florida Statutes, except that 

requests for discharge or continued involuntary hospitalization of 

the child shall be directed to the court that committed the child.

(E) If a child is not committed to a residential 

psychiatric facility and has been ordered to receive appropriate 

treatment at an outpatient facility or service and it appears during 

the course of the ordered treatment

(i) that treatment is not being provided or that 

the child now meets the criteria for hospitalization, the court shall 

conduct a hearing pursuant to subdivision (e)(2) of this rule.

(ii) that the child no longer requires treatment at 

an outpatient facility or service, the court shall enter an order 

discharging the child.

(F) During the time the child is receiving treatment, 

either by hospitalization or through an outpatient facility or service, 

any party may request the court to conduct a hearing to determine 

the nature, quality, and need for continued treatment. The hearing 

shall be conducted in conformity with subdivision (e)(2) of this rule.

(G) No later than 30 days before reaching age 19, a 

child still under supervision of the court under this rule shall be 

afforded a hearing. At the hearing, a determination shall be made 

as to the need for continued hospitalization or treatment. If the 

court determines that continued care is appropriate, proceedings 

shall be initiated under chapter 394, Florida Statutes. If the court 

determines further care to be unnecessary, the court shall 

discharge the child.

Committee Notes
- 28 -

2021 Amendment. The contact information for the 

Department of Children and Families regarding restoration of 

competency is: JITP Statewide Coordinator, Mental Health 

Treatment Facilities, Department of Children and Families, 1317 

Winewood Blvd., Bldg. 6, 3rd Floor, Tallahassee, FL 32399 

SAMH.jitp@myflfamilies.com Office: 850-717-4333 Fax: 850-487-

1307.