IN THE SUPREME COURT OF FLORIDA. : Case No. SC MANDATORY REVIEW OF DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

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1 IN THE SUPREME COURT OF FLORIDA LEROY OFFILL, Petitioner, vs. STATE OF FLORIDA, Respondent. : : : Case No. SC : : : MANDATORY REVIEW OF DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT INITIAL BRIEF OF PETITIONER ON THE MERITS JAMES MARION MOORMAN PUBLIC DEFENDER TENTH JUDICIAL CIRCUIT CLARK E. GREEN Assistant Public Defender FLORIDA BAR NUMBER O Public Defender's Office Polk County Courthouse P. O. Box Drawer PD Bartow, FL (863)

2 ATTORNEYS FOR PETITIONER

3 TOPICAL INDEX TO BRIEF PAGE NO. STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 4 ARGUMENT 5 ISSUE DID THE SECOND DISTRICT COURT OF APPEAL ERR BY REVERSING THE TRIAL COURT'S ORDER DISMISSING THE CHARGE AND REMANDING THE CASE FOR AN EVIDENTIARY HEARING? 5 CONCLUSION 11 CERTIFICATE OF SERVICE 11 APPENDIX 12 i

4 TABLE OF CITATIONS CASES PAGE NO. Hall v. State, 823 So. 2d 757 (Fla. 2002) 7 Hart v. State, 405 So. 2d 1048 (Fla. 4th DCA 1981) 7 State v. Offill, 837 So. 2d 533 (Fla. 2d DCA 2003) 3, 5 OTHER AUTHORITIES Fla. R. App. P (a)(1)(A)(ii) 3 Fla. R. Crim. P , 6, (1), Fla. Stat. (1995) , Fla. Stat. (2001) 4, 6-9 ii

5 STATEMENT OF THE CASE AND FACTS On May 4, 1995, the State Attorney for the Thirteenth Judicial Circuit in and for Hillsborough County filed an information charging Petitioner, LEROY OFFILL, with one count of committing a lewd and lascivious act on a child under the age of 16, in violation of Section (1), Florida Statutes (1995). The events giving rise to this charge occurred on or about March 18, 1995, in Hillsborough County, Florida. (V1/R4-5) On July 7, 1995, the Honorable Barbara Fleischer, Circuit Judge, ordered Mr. Offill's evaluation for competency to stand trial and for a determination of his sanity at the time the offense was committed. (V1/R11-15) On July 24, 1995, Dr. A. G. Gonzalez wrote a report after his evaluation in which he concluded that Mr. Offill was not competent to proceed to trial. (V1/R16-18) Dr. Gonzalez made the following findings and observations in his report: (1) Mr. Offill had no prior criminal history; (2) he did not know his age or where he was born; (3) his IQ was approximately in the mid-60s, which placed him in the moderate range and mental retardation; (4) he did not know how long he had lived in Florida, but he did know that he was living with his sister; (5) he left school when he was ten years old and could not read or write and did not know any basic math skills, such as addition or subtraction; (6) he had never worked, he received Social Security check and his sister acted as his legal guardian; (7) he did not fully appreciate the charges or the range and nature of the possible penalties; 1

6 (8) he did not understand the adversarial nature of the judicial process and lacked the capacity to disclose pertinent information regarding the case to an attorney; (9) he lacked the ability to relate to and assist his attorney in defending the case, to challenge prosecution witnesses, to manifest appropriate courtroom behavior or to offer relevant testimony; and (10) he was not competent and did not know the difference between right and wrong when the offense was committed. (V1/R16-18) On July 20, 1995, Dr. Vincent Skotko wrote a report after his evaluation in which he made similar findings and reached similar conclusions regarding Mr. Offill's competency. (V1/R20-22) On July 27, 1995, a hearing was held at which Judge Fleischer deemed Mr. Offill incompetent to proceed to trial. (V1/R39-45) On September 7, 1995, the court placed Mr. Offill into the Manors for psychological treatment and therapy after the court had found him incompetent to stand trial. (V1/R19) On October 10, 1995, the court issued an order permitting Mr. Offill to change his residence to live in Phoenix, Arizona with his sister, Anita Nelson. (V1/R27) On October 5, 2001, Mr. Offill filed a motion to dismiss the charge because the five-year statute of limitations had expired since the trial court had determined that he was incompetent to proceed to trial. (V1/R28-29) On November 6, 2001, the Honorable Ronald Ficcarotta, Circuit Judge, granted the motion to dismiss because the five-year statute of limitations had expired since the court had found Mr. Offill to be 2

7 incompetent. (V1/R36) That same day, the State filed a timely Notice of Appeal. (V1/R30) On March 12, 2002, the State filed its Initial brief and undersigned counsel filed the Answer brief on April 1, On February 12, 2003, the Second District Court of Appeal reversed the trial court's dismissal of the charge and remanded for an evidentiary hearing so the trial court could make the required findings to support its determination. State v. Offill, 837 So. 2d 533 (Fla. 2d DCA 2003). After announcing the reversal, the Court stated, "[a]s a final note, we observe that, due to the apparent conflict between the rule and the statute, resolution of this issue would be helpful to the courts that are subsequently faced with this issue." Offill, 837 So. 2d at 535. (emphasis added) On February 21, 2003, Mr. Offill filed a timely Notice of Appeal to this Court, pursuant to Florida Rule of Appellate Procedure 9.030(a)(1)(A)(ii). 3

8 SUMMARY OF THE ARGUMENT The Second District Court of Appeal erred by reversing the trial court's dismissal of Mr. Offill's charge and remanding for an evidentiary hearing. The Court effectively declared Section invalid when it held that Florida Rule of Criminal Procedure controlled over the statute. The statute's re-quirement that the State must prove that a defendant has regained competency comports with the Constitution's requirement that the State must prove all elements of a criminal offense beyond a reasonable doubt. Absent the State's proving that the defendant has regained competency, the trial court shall dismiss the charges once five years has elapsed. This Court must strictly adhere to the legislature's approach because it conforms more with the Constitution's dictates and also promotes judicial economy. There-fore, this Court must reverse the District Court's order and instruct the trial court to dismiss Mr. Offill's charge without prejudice. 4

9 ARGUMENT ISSUE DID THE SECOND DISTRICT COURT OF APPEAL ERR BY REVERSING THE TRIAL COURT'S ORDER DISMISSING THE CHARGE AND REMANDING THE CASE FOR AN EVIDENTIARY HEARING? At a hearing in July of 1995, Judge Fleischer found that Mr. Offill was incompetent to stand trial. (V1/R39-45) The court made this finding after a clinical psychologist and a psychiatrist had independently evaluated Mr. Offill and both had concluded that he was not competent to proceed to trial. (V1/R16-18;20-22) The court placed Mr. Offill into a facility known as the Manors so that he could receive psychological treatment and therapy in September of (V1/R19) In October of 1995, Judge Fleischer permitted Mr. Offill to move to Phoenix, Arizona to live with his sister, Anita Nelson. (V1/R27) Mr. Offill filed the motion to dismiss the charge in October of 2001, more than six years after the court deemed him incompetent. (V1/R28-29) Judge Ficcarotta dismissed the charge at a hearing later that month and signed the order to dismiss the charge in November of (V1/R36,70) The prosecutor requested that Mr. Offill be brought back for a competency evaluation, but she acknowledged that he was in Arizona and that there had not been any contact with him since he had left. (V1/R70) Following the State's appeal, the Second District Court of Appeal reversed the trial court's dismissal of Mr. Offill's charge. Offill, 837 So. 2d at 534. The Court remanded the case and 5

10 instructed the trial court to conduct an evidentiary hearing and to make the required findings to support its determination about Mr. Offill's competency. Id. The Court effectively declared the statute to be invalid when it held that Rule prevailed over Section It noted the inherent conflict that exists between Florida Rule of Criminal Procedure and Section , Florida Statutes (2001): Section provides that the trial court shall dismiss the charges after five years has elapsed unless the court states why it believes that the defendant will become competent in the foreseeable future. By contrast, [Florida Rule of Criminal Procedure 3.213] provides that, after the expiration of five years, the court shall dismiss the charges if it finds, after a hearing, that (1) the defendant remains incompetent to stand trial, (2) there is no substantial probability that the defendant will become mentally competent to stand trial and (3) the defendant does not meet the criteria for commitment. Id. (emphasis added) As the Court observed, the difference between the statute and the rule is that the statute presumes that the defendant will remain incompetent after five years and requires the court to explain its reason(s) for believing that the defendant has regained competency during the interim. Id. Rule 3.213, on the other hand, presumes that the defendant will automatically regain competency after five years and requires the court to conduct an evidentiary hearing to determine whether the defendant has presented competent evidence to support a finding that he/she remains incompetent. Id. The Second District determined that this was a procedural matter and held that Florida Rule of Criminal Procedure 6

11 3.213 controlled over Section , Florida Statutes (2001). Id.; citing Hart v. State, 405 So. 2d 1048 (Fla. 4th DCA 1981). This Court has recently explained the interplay between substantive law, procedural law and judicial procedural rules as follows: Substantive law prescribes the duties and rights under our system of government. The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions. Procedural law concerns the means and method to apply and enforce those duties and rights. Procedural rules concerning the judicial branch are the responsibility of this Court, subject to repeal by the legislature in accordance with our constitutional provisions. Hall v. State, 823 So. 2d 757, 763 (Fla. 2002). (emphasis added) The enactment of Section evinces the Florida Legislature's belief that the State must be required to demonstrate that a defendant has regained competency after the passage of five years since a court adjudicated the defendant incompetent. The United States Constitution requires that the State must prove each element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U. S. 358 (1970). In passing Section , the legislature apparently believed, given the United States Constitution's allocation of the burden of proof in a criminal case upon the State, that the defendant should not be required to prove that he/she remained incompetent after the court had declared the defendant to be incompetent. Absent the State's proving that the defendant is again competent to proceed to trial, the legislature has 7

12 mandated that the trial court shall dismiss the charge(s). (emphasis added) Section provides that, if the court dismisses the charges, the dismissal is "without prejudice" and the State may refile the charges in the event that the defendant becomes competent to proceed in the future. The legislature has, thus, recognized that there may be times when a defendant becomes competent after a lengthy period of time has elapsed. The State bears the responsibility to refile the charges in such event. This statutory scheme that the legislature adopted corresponds with the requirements that the Constitution places upon the State. The scheme contained in Rule clearly does not comply with the Constitution's requirements. Thus, the fairest and most logical resolution of this inherent conflict, in compliance with the Constitution's dictates, is this Court's strict adherence to the legislature's approach. That approach is to require the trial court to dismiss the charge(s) after five years have passed since the court's adjudicating a defendant incompetent unless the State presents competent evidence that the defendant has regained competency. (emphasis added) The facts of Mr. Offill's case clearly illustrate why this Court's decision to follow the legislature's approach will promote judicial economy more than adherence to Rule Mr. Offill was evaluated by a clinical psychologist and a psychiatrist in July of Both professionals made factual findings and independently determined that Mr. Offill was not competent to proceed to trial. 8

13 Dr. Gonzalez, the psychiatrist, stated that Mr. Offill did not appreciate the charge or understand the range and nature of the possible penalties that he could receive if he were found guilty. He also deduced that Mr. Offill did not understand the adversarial nature of the judicial process, that he could not discuss the facts of his case with his attorney and that he could not offer relevant testimony at a trial. Most significantly, Dr. Gonzalez determined that Mr. Offill's IQ was roughly in the mid-60s, which meant that he was mildly mentally retarded. There is nothing in Dr. Gonzalez's findings to suggest that the passage of time would alter any of these factors or con-clusions. Unfortunately, Mr. Offill's below-average intelligence and mental retardation are immutable characteristics. Given that fact, Dr. Gonzalez's observations and conclusions in 1995 will not be subject to change, even after more than six years, because most of the findings were based upon or related to the determination that Mr. Offill's intelligence was below-average and that he was mentally retarded. Therefore, the trial court's conducting another hearing on this matter would be a futile effort because Mr. Offill's belowaverage intelligence will most likely prevent him from ever regaining the competency required for a trial and from ever understanding the nature of the charges or the difference between right and wrong. Based upon the Constitution's requirements as well as the particular facts of this case, this Court must determine that Section remains valid. Therefore, this Court must reverse the 9

14 District Court's order and instruct the trial court to dismiss Mr. Offill's charge without prejudice. 10

15 CONCLUSION In light of the foregoing reasons, arguments, and authorities, Mr. Offill respectfully asks this Court to reverse the District Court's order and instruct the trial court to dismiss the charge without prejudice. CERTIFICATE OF SERVICE I certify that a copy has been mailed to Richard M. Fishkin, Concourse Center #4, Suite 200, 3507 E. Frontage Rd., Tampa, FL 33607, (813) , on this day of May, CERTIFICATION OF FONT SIZE I hereby certify that this document was generated by computer using Wordperfect 5.1 format with Courier 12 Point Font. The Office of the Public Defender, Tenth Judicial Circuit, is currently in the process of converting from Wordperfect 5.1 format to Microsoft Word format in order to comply with Rule 9.210(a)(2), since Courier New 12 Point Font is not available in Wordperfect 5.1. As soon as this upgrade is completed, Courier New 12 Point Font will be the standard font size used in all documents submitted by undersigned. This document substantially complies with the technical requirements of Rule 9.210(a)(2) and complies with the intent of said rule. Respectfully submitted, JAMES MARION MOORMAN CLARK E. GREEN Public Defender Assistant Public Defender Tenth Judicial Circuit Florida Bar Number O (863) P. O. Box Drawer PD Bartow, FL /ceg 11

16 APPENDIX 1. COPY OF SECOND DISTRICT COURT OF A1-A2 APPEAL'S OPINION IN STATE V. OFFILL, 837 SO. 2D 533 (FLA. 2D DCA 2003). PAGE NO.