RUTH ELIZABETH GENTZEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that it lacks jurisdiction to hear an appeal from a non-final order finding a defendant incompetent and committing her to a mental health facility.
[1] An order finding a defendant incompetent to proceed in a criminal case is a non-final order that postpones further proceedings.
[2] District courts of appeal have jurisdiction to review non-final orders in criminal cases only to the extent provided by rules adopted by the supreme court.
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Join FLexlaw to unlock all legal intelligenceAppellant was found incompetent to proceed in a criminal case and committed to a mental health facility. She appealed the commitment order, challengin…
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WEBSTER, Judge.
Appellant seeks review of a non-final order finding her incompetent, because of mental illness, to proceed in the criminal case filed against her; and committing her, pursuant to section 916.13(1), Florida Statutes (1995), to the custody of the Department of Health and Rehabilitative Services for placement in a mental health facility. She does not challenge the finding of incompetence; rather, she complains only that the trial court should have considered less restrictive alternative treatment placements. The state contends that we lack jurisdiction to hear this appeal and that, therefore, we must dismiss it. We agree and, accordingly, dismiss the appeal for lack of jurisdiction.
Orders such as that which is the subject of this appeal are non-final, because they merely postpone further proceedings. Fla.R.Crim.P. 8.212. See Ozbourn v. State, 651 So. 2d 795 (Fla. 1st DCA 1995) (order finding defendant incompetent to stand trial is interlocutory in nature). Article V, section 4(b)(1), of the Florida Constitution vests in the district courts of appeal jurisdiction to review non-final orders only “to the extent provided by rules adopted by the supreme court.”
Florida Rule of Appellate Procedure 9.030(b)(1)(B) provides that the district courts of appeal possess jurisdiction to review “non-final orders of circuit courts as prescribed by rule 9.130.” In turn, rule 9.130(a)(2) provides that “[r]eview of non-final orders in criminal cases shall be as prescribed by rule 9.140.” Although the state is permitted to take an appeal from an order “finding a defendant incompetent or insane” pursuant to rule 9.140(c)(1)(H), no corresponding provision is found in rule 9.140(b), which lists those appeals a defendant may take in a criminal case. We have not been able to find any other rule which would support the conclusion that we possess jurisdiction to hear this appeal, and appellant has cited none. Accordingly, we conclude that we lack jurisdiction.
The fact that we lack jurisdiction to hear this appeal does not leave appellant without a means by which to obtain review of the order in question. The means traditionally employed for such purpose has been a petition for writ of habeas corpus. MacNeil v. State, 586 So. 2d 98 (Fla. 5th DCA 1991). The district courts of appeal have jurisdiction to issue writs of habeas corpus. Art. V, § 4(b)(3), Fla. Const. However, the preferable course in most cases is to file a petition seeking a writ of habeas corpus in the circuit court for the county in which the defendant is being detained, because that court is in a better position to conduct any evidentiary hearing which might prove necessary. Such is the case here. Accordingly, we decline to treat this appeal as a petition for a writ of habeas corpus.
APPEAL DISMISSED.
LAWRENCE and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Patton v. State, 712 So. 2d 1206 (Fla. 1st DCA 1998)…an appeal from an order “finding a defendant incompetent [*1208] or insane” pursuant to rule 9.140(c)(1)(H), no corresponding provision is found in rule 9.140(b), which lists those appeals a defendant may take in a criminal case. Gentzen v. State, 689 So. 2d 1178, 1179 (Fla. 1st DCA 1997). In Vasquez v. State, 496 So. 2d 818 (Fla.1986), Vasquez was found incompetent to stand trial in 1979. In 1984, Vasquez’s counsel moved to dismiss the charges pending against his client pursuant to Florida Rule of Criminal…1 / 2
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Franklin v. Kearney, 814 So. 2d 462 (Fla. 4th DCA 2001)…a Statutes (2001). A prior version of section 916.107(9)(a) has been interpreted to require that such a challenge be made by habeas petition filed in the circuit court in the county where the defendant is being detained. See, e.g., Gentzen v. State, 689 So. 2d 1178 (Fla. 1st DCA 1997); McLelland v. State, 368 So. 2d 673 (Fla. 1st DCA 1979). However, the statute was amended in 1998 to provide that the committing court be requested to issue the writ of release. See Ch. 98-92, § 7, at 712, Laws of Fla. It was t…
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J.L.W. v. State, 789 So. 2d 518 (Fla. 1st DCA 2001)…[*519] PER CURIAM. DISMISSED. Patton v. State, 712 So. 2d 1206 (Fla. 1st DCA 1998); Gentzen v. State, 689 So. 2d 1178 (Fla. 1st DCA 1997). BARFIELD, DAVIS and LEWIS, JJ., concur.…
Authorities Cited
- James v. MacNEIL, 586 So. 2d 98 (Fla. 5th DCA 1991)
- Ozbourn v. State, 651 So. 2d 795 (Fla. 1st DCA 1995)