8.095 Procedure when Child Believed to be Incompetent or Insane
(a) Incompetency At Time of Adjudicatory Hearing
or Hearing on Petition Alleging Violation
Juvenile Probation in Delinquency Cases.
(A) 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 observations of
and conversations with the child that have formed the
basis for the motion.
(B) 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 file the motion.
(2) 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 state shall immediately stay the
proceedings and fix a time for a hearing for the determination
of the child’s mental condition.
(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 accordingly.
(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 Family Services for treatment
upon a finding of clear and convincing evidence
(A) The child is mentally ill or mentally retarded
and because of the mental illness or retardation
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
(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
(6) Commitment. Each child who has been
incompetent to proceed and who meets
the criteria for commitment in subdivision (a)(4) must
be committed to the Department of Children and
Family Services. 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
of the child will be transferred
to the Department of
Juvenile Justice to continue delinquency
The court retains authority, however, to order the Department
of Children and Family Services to provide
continued treatment to maintain competency.
(A) A child adjudicated incompetent because
of mental retardation may be ordered into a program
designated by the Department of Children
Services for retarded children.
(B) A child adjudicated incompetent because
of mental illness may be ordered into a program designated
by the Department of Children and Family Services
for mentally ill children.
(7) Continuing Jurisdiction and Dismissal of
(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
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
(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.
(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 Family
Services to provide appropriate treatment
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 Family Services.
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 Family Services, the Department of
Juvenile Justice, the state, and counsel for the child.
(9) Speedy Trial Tolled. Upon the filing of a
motion by the child’s counsel alleging the child to be
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).
(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
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,
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
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) 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
(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 mental
retardation, the court shall order the Developmental
Services Program Office of the Department of Children
and Family Services to examine the child to determine
if the child meets the definition of retardation
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 Family
Services retardation services or programs.
(d) Competence to Proceed; Scope of Examination
(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
the present proceedings.
(B) In considering the competence of the child
to proceed, the examining experts shall consider
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
(iv) disclose to counsel facts pertinent to
the proceedings at issue;
(v) display appropriate courtroom behavior;
(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
(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
to whether residential
or nonresidential treatment or
training is required must be included. In considering
issues related to treatment, the experts shall report on
(A) The mental illness, mental retardation, or
mental age causing incompetence.
(B) The treatment or education appropriate
for the mental illness or mental retardation of the child
and an explanation of each of the possible treatment or
education alternatives, in order of recommendation.
(C) The availability of acceptable treatment or
education. If treatment or education is available in the
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
the treatment required to restore competence,
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
(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
(B) describe the procedures, techniques, and
tests used in the examination and the purposes of
(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
(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.
(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
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
(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
(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 Family Services 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.
(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
or continued involuntary hospitalization of
the child shall be directed to the court that committed
(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
(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,
shall be initiated under chapter 394, Florida Statutes.
If the court determines further care to be unnecessary,
the court shall discharge the child.