Fla. R. Crim. P. 3.211 · V. PRETRIAL MOTIONS AND DEFENSES
COMPETENCE TO PROCEED: SCOPE OF EXAMINATION AND REPORT
Text — October 1, 2026 edition
(a) Examination by Experts. On appointment by the court, the experts must examine the defendant with respect to the issue of competence to proceed, as specified by the court in its order appointing the experts to evaluate the defendant, and must evaluate the defendant as ordered.
(1) The experts must first consider factors related to the issue of whether the defendant meets the criteria for competence to proceed; that is, whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings.
(2) In considering the issue of competence to proceed, the examining experts must consider and include in their report:
(A) the defendant’s capacity to:
(i) appreciate the charges or allegations against the defendant;
(ii) appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant;
(iii) understand the adversary nature of the legal process;
(iv) disclose to counsel facts pertinent to the proceedings at issue;
(v) manifest appropriate courtroom behavior;
(vi) testify relevantly; and
(B) any other factors deemed relevant by the experts.
(b) Factors to Be Evaluated. If the experts should find that the defendant is incompetent to proceed, the experts must report on any recommended treatment for the defendant to attain competence to proceed. In considering the issues relating to treatment, the examining experts must report on:
(1) the mental illness or intellectual disability causing the incompetence;
(2) the completion of a clinical assessment by approved mental health experts trained by the department to ensure safety of the patient and the community;
(3) the treatment or treatments appropriate for the mental illness or intellectual disability of the defendant and an explanation of each of the possible treatment alternatives, including, at a minimum, mental health services, treatment services, rehabilitative services, support services, and case management services as described in s. 394.67, which may be provided by or within multi-disciplinary community treatment teams, such as Florida Assertive Community Treatment, conditional release programs, outpatient services or intensive outpatient treatment programs, and supportive employment and supportive housing opportunities in treating and supporting the recovery of the patient;
(4) the availability of acceptable treatment. If treatment is available in the community, the expert must so state in the report; and
(5) the likelihood of the defendant attaining competence under the treatment recommended, an assessment of the probable duration of the treatment required to restore competence, and the probability that the defendant will attain competence to proceed in the foreseeable future. The procedure for determinations of the confidential status of reports is governed by Rule of General Practice and Judicial Administration 2.420.
(c) Written Findings of Experts. Any written report submitted by the experts must:
(1) identify the specific matters referred for evaluation;
(2) describe the evaluative procedures, techniques, and tests used in the examination and the purpose or purposes for each;
(3) 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 opinion;
(4) identify the sources of information used by the expert and present the factual basis for the expert’s clinical findings and opinions; and
(5) include a full and detailed explanation regarding why the alternative treatment options referenced in the evaluation are insufficient to meet the needs of the defendant. The procedure for determinations of the confidential status of reports is governed by Rule of General Practice and Judicial Administration 2.420.
(d) Limited Use of Competency Evidence.
(1) The information contained in any motion by the defendant for determination of competency to proceed or in any report of experts filed under this rule insofar as the report 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, must be used only in determining the mental competency to proceed or the commitment or other treatment of the defendant.
(2) The defendant waives this provision by using the report, or portions thereof, in any proceeding for any other purpose, in which case disclosure and use of the report, or any portion thereof, are governed by applicable rules of evidence and rules of criminal procedure. If a part of the report is used by the defendant, the state may request the production of any other portion of that report that, in fairness, ought to be considered.
Notes and commentary — not rule text
Committee Notes
1980 Adoption. This rule provides for appointment of experts and for the contents of the report which the experts are to render. Since the issue of competency has been raised, the experts will, of course, report on this issue. If there is reason to believe that involuntary hospitalization is also required, the court should order the experts to make this evaluation as well during their initial examination. It was felt, however, that the experts should not inquire into involuntary hospitalization as a matter of course, but only if sufficient reasonable grounds to do so were alleged in the motion, comparing the procedure to that required by the civil commitment process. (a) Certain factors relating to competency to stand trial have been determined to be appropriate for analysis by examining experts. Often, with different experts involved, the experts do not use the same criteria in reaching their conclusions. The criteria used by experts who testify at the competency and commitment hearings may not be the same as those used by persons involved in the treatment process or later hearings after treatment. This subdivision, therefore, addresses those factors which, at least, should be considered by experts at both ends of the spectrum. Additional factors may be considered, and these factors listed may be addressed in different ways. At least the requirement that these specific factors be addressed will give a common basis of understanding for the experts at the competency hearing, the trial judge, and the experts who will later receive a defendant who is found to be incompetent to stand trial and in need of involuntary hospitalization. The test for determining competency to stand trial is that which has been contained in both the prior rules and statutes developed from Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). (1) The factors set forth in this section have been developed by the Department of Health and Rehabilitative Services (HRS) in its Competency Evaluation Instrument, a refinement of the McGarry Competency Evaluation Procedure. (b) The issue of involuntary hospitalization is to be considered only if the court has ordered the experts to consider this issue; the court would do so if it found that there existed reasonable grounds to believe that the defendant met the criteria for involuntary hospitalization. The factors set forth in order to determine this issue are those that have been developed through prior statutes relating to involuntary hospitalization, from the case of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), and In Re: Beverly, 342 So. 2d 481 (Fla. 1977). As to criteria for involuntary hospitalization, see chapter 394, Florida Statutes, or, in the case of mental retardation, see chapter 393, Florida Statutes. Section 394.467(1), Florida Statutes (1979), prescribes criteria for involuntary hospitalization or placement. In case of mental retardation, section 393.11, Florida Statutes (1979), governs. (c) In most instances, the issues of incompetency at time of trial and insanity at time of the offense will be raised at the same time or, at least, in the same case. In the event that the 2 are not raised in the same case, there would be no reason for the examining experts to inquire into the mental status of the defendant at the time of the offense itself at the incompetency examination. However, if insanity as a defense is raised, it would be most appropriate for judicial efficiency to have the examining experts inquire into all issues at the same time. This provision permits such inquiry by the experts in the event that notice of intent to rely on the defense of insanity has been filed by the defendant. (d) This provision is meant to permit local circuits to develop their own forms for such reports if they feel that such forms are appropriate. It does not preclude HRS from suggesting a form that would be of particular assistance to them and requesting its adoption, but adoption is not mandated. (e) This subdivision provides for the confidentiality of the information obtained by virtue of an examination of the defendant pursuant to this subdivision. Cf. §90.108, Fla.Stat. (1979); Fla.R.Civ.P. 1.330(6). Section 916.12, Florida Statutes is a companion statute relating to mental competence to stand trial.
Source of truth
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- October 1, 2026 edition
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