CourtListener 5306865

Gesamter Gesetzestext

Supreme Court of Florida
____________

No. SC21-626
____________

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
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.

-2-
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 struck-

through 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

-3-
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

-4-
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.

-5-
(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:

-6-
(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.

-7-
(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.

-8-
(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.

-9-
(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

- 10 -
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,

- 11 -
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

- 12 -
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.

- 13 -
(ii) If the court finds the child competent to
proceed, the court shall enter a written order so finding and proceed
accordingly.

(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.

- 14 -
(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.

- 15 -
(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

- 16 -
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.

- 17 -
(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.

(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

- 18 -
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

- 19 -
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;

(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.

- 20 -
(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

- 21 -
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.

(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.

- 22 -
(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:

- 23 -
(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.

(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.

- 24 -
(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.

- 25 -
(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.

(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.

- 26 -
(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.

(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

- 27 -
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.

- 28 -

In Re: Amendments to Florida Rule of Juvenile Procedure 8.095

Gesamter Gesetzestext

Setzen Sie Ihre Recherche in ChatGPT oder Claude fort