Third District Court of Appeal
                               State of Florida

                          Opinion filed January 11, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                 No. 3D15-1003
                            Lower Tribunal No. 12-20525
                               ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                              Christine Carey,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Miguel de la O,
Judge.

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellant.

      Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant
Public Defender, for appellee.


Before WELLS, LAGOA and SALTER, JJ.

     WELLS, Judge.
      The State appeals from an order terminating jurisdiction, discharging

Appellee and dismissing the pending criminal case against Appellee, on a finding

that Appellee could not be restored to competency and that further review by the

court would be futile. We agree with the State that Florida Rule of Criminal

Procedure 3.213(a)(1) precludes dismissal of the criminal case at this time and for

that reason reverse in part the order under review.

      The underlying facts are relatively undisputed.      Appellee is an elderly

woman who suffers from advancing dementia which is irreversible. The charges

against her stem from an aggravated battery on a pregnant woman.

      Over a period of three years, Appellee has been evaluated by a number of

experts all of whom agree she will never be restored to competency. The State

does not disagree with these determinations and no determination of competency

restoration has been ordered by the court. In fact, Appellee was conditionally

released in 2013 to her family which continues to care for her and to do everything

possible to protect others from her.

     Essentially concluding that Appellee’s physical condition, as well as her

mental status, makes Appellee no threat to the public and that continued court

supervision would be futile and a waste of judicial resources, the court below

terminated further court ordered supervision or care and then dismissed the

criminal action against her.


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      While the State does not take issue with the former determination it claims

that the court below erred in determining that a lack of restorability to competency

supports dismissal of the criminal action. We agree.

      Rule 3.213(a)(1) generally provides that charges “shall” be dismissed

against an individual charged with a felony who remains incompetent for five

years; who does not meet the criteria for commitment; and, who has “no

substantial probability” of having competency restored:

       (a) Dismissal   without        Prejudice        during    Continuing
           Incompetency.

      (1) If at any time after 5 years following a determination that a person
      is incompetent to stand trial or proceed with a probation or
      community control violation hearing when charged with a felony, or 1
      year when charged with a misdemeanor, the court, after hearing,
      determines that the defendant remains incompetent to stand trial or
      proceed with a probation or community control violation hearing, that
      there is no substantial probability that the defendant will become
      mentally competent to stand trial or proceed with a probation or
      community control violation hearing in the foreseeable future, and
      that the defendant does not meet the criteria for commitment, it shall
      dismiss the charges against the defendant without prejudice to the
      state to refile the charges should the defendant be declared competent
      to proceed in the future.

(Emphasis added).

      Section 916.145 of the Florida Statutes similarly provides for dismissal of

charges where a defendant has remained continuously incompetent for five

uninterrupted years with no return to competency foreseeable:




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         (1) The charges against a defendant adjudicated incompetent to
         proceed due to mental illness shall be dismissed without prejudice to
         the state if the defendant remains incompetent to proceed for 5
         continuous, uninterrupted years after such determination, unless the
         court in its order specifies its reasons for believing that the defendant
         will become competent to proceed within the foreseeable future and
         specifies the time within which the defendant is expected to become
         competent to proceed. The court may dismiss such charges at least 3
         years after such determination, unless the charge is:
                ...
         (n) Aggravated battery[.]

§ 916.145(1)(n), Fla. Stat. (2015).

         Both Rule 3.213(a)(1) and section 916.145(1)(n), leave no doubt that the

court below, while free to terminate supervised follow up care, was not authorized

to dismiss the charges pending against Appellee as fewer than five years had

elapsed between the time Appellee was adjudicated incompetent and the dismissal

order.

         In reaching this conclusion we necessarily reject Appellee’s argument that

section 916.17 of the Florida Statutes conferred discretion on the court below to

dismiss the charges against Appellee in less than five years. That provision,

authorizes conditional release in lieu of involuntary commitment either before an

adjudication of guilt or after an acquittal on a finding of not guilty by reason of

insanity. Section 916.17 expressly authorizes release in either circumstance when

predicated on a court approved treatment plan encompassing, among other things,




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periodic follow up reports to the court regarding a defendant’s compliance and

treatment progress:

       (1) Except for an inmate currently serving a prison sentence, the
      committing court may order a conditional release of any defendant in
      lieu of an involuntary commitment to a facility pursuant to s. 916.13
      or s. 916.15 based upon an approved plan for providing appropriate
      outpatient care and treatment. Upon a recommendation that outpatient
      treatment of the defendant is appropriate, a written plan for outpatient
      treatment, including recommendations from qualified professionals,
      must be filed with the court
             ....

      In its order of conditional release, the court shall specify the
      conditions of release based upon the release plan and shall direct the
      appropriate agencies or persons to submit periodic reports to the court
      regarding the defendant’s compliance with the conditions of the
      release and progress in treatment
             ....

      (3) If at any time it is determined after a hearing that the defendant
      who has been conditionally released under subsection (1) no longer
      requires court-supervised follow up care, the court shall terminate its
      jurisdiction in the cause and discharge the defendant.

§ 916.17(1), (3), Fla. Stat. (2015) (emphasis added).

       While this provision does state that when a trial court has determined that a

defendant on conditional release no longer requires follow up care, jurisdiction will

be terminated and the defendant discharged, to be consistent with section 916.145,

this provision must be read to apply only to the court’s continuing jurisdiction to

enforce a conditional release plan and its authority to discharge a defendant from

the obligation to further comply with the plan. See Forsythe v. Longboat Key


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Beach Erosion Control Dist., 

, 455 (Fla. 1992) (“Where possible,

courts must give full effect to all statutory provisions and construe related statutory

provisions in harmony with one another.”).1 Section 916.17 should not be read as

invalidating the five year before dismissal requirement of section 916.145.

      In sum, while the court below was authorized to “discharge” Appellee from

her responsibility to further comply with the obligation to report to the court under

her conditional release plan, and to “terminate its jurisdiction” to enforce that plan,

it was not authorized to dismiss the charges against Appellee, because five years

had not elapsed since she was determined incompetent to proceed. See Mosher v.

State, 

, 1232 (Fla. 1st DCA 2004) (“The trial court correctly ruled

that Fla. R.Crim. P. 3.213 and section 916.145, by their plain language, relate to

the dismissal of charges at any time after five years have elapsed from the time the

person is determined incompetent to proceed. Because the five-year period of time

has not yet passed, we find no error in the trial court’s ruling that the charges

against Mosher should not yet be dismissed pursuant to Fla. R. Crim. P. 3.213 and
1 The State supports the five year requirement in part by pointing to Florida Rule

of Criminal Procedure 3.213(a)(2), as an instance where a shorter period before
dismissal was provided, wording missing from Rule 3.213(a)(1):

      (2) If the incompetency to stand trial or to proceed is due to
      intellectual disability or autism, the court shall dismiss the charges
      within a reasonable time after such determination, not to exceed 2
      years for felony charges and 1 year for misdemeanor charges, unless
      the court specifies in its order the reasons for believing that the
      defendant will become competent within the foreseeable future . . . .


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section 916.145.”); see also State v. Benninghoff, 

, 67 (Fla. 4th DCA

2016) (“Cases reviewing the dismissal of charges, pursuant to section 916.145,

Florida Statutes, and rule 3.213 of the Florida Rules of Criminal Procedure have

uniformly and consistently enforced the five-year requirement before dismissal.

See Bryant v. State, 

, 613 (Fla. 5th DCA 2012) (affirming denial of

motion to dismiss because five years had not elapsed); Tiburcio v. State, 

(Fla. 5th DCA 2012) (reversing dismissal of charges because five years had

not elapsed).    Mosher v. State, 

, 1232 (Fla. 1st DCA 2004)

(affirming denial of motion to dismiss prior to expiration of five years). Here, less

than four years elapsed before the trial court dismissed the charge against the

defendant. Based on a plain reading of rule 3.213, section 916.145, and case law,

the trial court erred in dismissing the charge.”); accord McCray v. State, 

1296, 1297 (Fla. 2d DCA 2016) (“To the extent the petition seeks relief from

that portion of the trial court’s order denying dismissal of the information, it is

denied based on a failure to show a departure from the essential requirements of

law because fewer than five years have elapsed since the original determination

that Mr. McCray was incompetent to proceed due to mental illness.”).

      Accordingly, with only two years from Appellee’s March 2013

determination of incompetency to the April 2015 order under review, the trial

judge erred in dismissing the criminal charge against Appellee. In accordance with


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the analysis above, that portion of the order on appeal terminating further follow

up review by the trial court is affirmed; that portion of the order dismissing the

charges against Appellee is reversed and remanded.

      Affirmed in part, reversed in part.




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