County Criminal Court: CRIMINAL LAW – Competency --- Record did not support trial court’s finding that defendant remained incompetent where expert had not seen defendant in a year and a half and testimony was equivocal. Order of dismissal reversed. State v. Lavine, No. CRC 07-13 APANO ( Fla. 6^th Cir. App. Ct. April 18, 2008).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

STATE OF FLORIDA

            Appellant,

                                                                              Appeal No. CRC 07-13 APANO

                                                                              UCN522007AP000013XXXXCR

v.

YOLANDA LAVINE

            Appellee.

__________________________/

Opinion filed _________________.

Appeal from a decision entered by

the Pinellas County Court
County Judge Edwin Jagger

James Peterson, Esquire

Assistant State Attorney

ORDER AND OPINION

            (J. Bulone)

            THIS MATTER is before the Court on the State’s appeal from an order entered by the Pinellas County Court dismissing resisting arrest and possession of marijuana charges against the defendant. After reviewing the State’s brief and the record --- the appellee failed to file an answer brief --- this Court reverses the order of dismissal.

            The trial court dismissed the charges against the defendant because the court found the defendant continued to be incompetent. A review of the record, however, reveals that there was insufficient evidence to support the finding. The testimony from the expert, Dr. Poorman, was that she had evaluated the defendant on November 11, 2005 and found that she was not competent to stand trial. She testified that she had seen the defendant a total of eight times since then, and that when the defendant was on her medications she is pretty stable and competent, but when she is not on medications then she is not competent. Dr. Poorman also testified that she had not seen the defendant in a year and a half because she had no way of contacting her.

            Dr. Poorman’s conclusion was based upon a stale evaluation. In In re Commitment of Reilly, 970 So.2d 453 ( Fla. 2d DCA 2007), the appellate court rejected a finding of incompetence because the last evaluation was done six months previously. In the case at bar, the expert had not seen the defendant for a year and a half. Clearly, this was insufficient to support the expert’s conclusion. The focus must be on the defendant’s present ability to consult with her lawyer with a reasonable degree of rational understanding and whether or not she has a rational and factual understanding of the proceedings against her. See Reilly at 455.

            Moreover, the expert’s conclusion was equivocal; i.e., if the defendant is on her medications then she is competent, if she is not on her medications then she is not competent. That testimony is insufficient to support findings that the defendant has continually been incompetent for a year, continues to be incompetent, and there is no substantial probability that the defendant will become competent to stand trial in the foreseeable future. These findings must be made before an order of dismissal can be entered pursuant to Fla. R. Crim. P. 3.213.

            The order granting dismissal must be reversed, and this case remanded to the trial court. Upon remand, the trial court should have the defendant evaluated pursuant to Fla. R. Crim. P. 3.210; a pick-up order may be issued if necessary. Once the defendant is evaluated the court shall then determine the defendant’s present competence.

            IT IS THEREFORE ORDERED that this Court reverses the order dismissing the charges, and remands this case to the trial court so that the court may determine the defendant’s present competence.

            DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of April, 2008.

                                                            _____________________________

                                                                        Joseph A. Bulone

                                                                        Circuit Court Judge

                                                            _____________________________

                                                                        David A. Demers

                                                                        Circuit Court Judge

                                                            ______________________________

                                                                        Cynthia J. Newton

                                                                        Circuit Court Judge

cc:        Office of the State Attorney

            Honorable Edwin Jagger

            Joseph T. Hobson, Esquire