Fla. R. Crim. P. 3.213 · V. PRETRIAL MOTIONS AND DEFENSES
CONTINUING INCOMPETENCY TO PROCEED, EXCEPT INCOMPETENCY TO PROCEED WITH SENTENCING; DISPOSITION
Text — October 1, 2026 edition
(a) Dismissal without Prejudice during Continuing Incompetency. After a determination that a person is incompetent to stand trial or proceed with a probation or community control violation hearing, the charge(s):
(1) shall be dismissed 1 year after a finding if the charge is a misdemeanor;
(2) shall be dismissed no later than 2 years after a finding if incompetency is due to intellectual disability or autism;
(3) may be dismissed 3 years after a finding, unless a charge is listed in section 916.145, Florida Statutes; or
(4) shall be dismissed after a finding that the defendant has remained incompetent for 5 continuous and uninterrupted years; provided that the court finds that the defendant remains incompetent to stand trial or proceed with a probation or community control violation hearing unless the court in its order specifies its reasons for believing that the defendant is expected to become competent to proceed. A dismissal under this rule shall be without prejudice to the state to refile the charge(s) should the defendant be declared competent to proceed in the future.
(b) Commitment or Treatment during Continuing Incompetency.
(1) If the defendant meets the criteria for commitment under section 394.467, Florida Statutes, the court shall commit the defendant to the Department of Children and Families for involuntary hospitalization solely under the provisions of law. If the defendant meets the criteria of section 394.4655, Florida Statutes, the court may order that the defendant receive outpatient treatment at any other facility or service on an outpatient basis subject to the provisions of those statutes. In the order of commitment, the judge shall order that the administrator of an inpatient facility notify the state attorney of the committing circuit no less than 30 days prior to the anticipated date of release of the defendant.
(2) If the continuing incompetency is due to intellectual disability or autism, and the defendant either lacks the ability to provide for his or her well-being or is likely to physically injure himself or herself, or others, the defendant may be involuntarily admitted to residential services as provided by law.
(c) Applicability. This rule shall not apply to defendants determined to be incompetent to proceed with sentencing, which is addressed in rule 3.214.
Notes and commentary — not rule text
Committee Notes
1980 Adoption. As to involuntary hospitalization, see section 394.467(1), Florida Statutes (1979); as to involuntary admission to residential services, see chapter 393, Florida Statutes (1979). (b) This provision is meant to deal with the defendant who remains incompetent after 5 years, and who does meet the criteria for involuntary hospitalization. It provides that the criminal charges will be dismissed and the defendant will be involuntarily hospitalized. It further provides that the administrator of the facility must notify the state attorney prior to any release of a defendant committed pursuant to this subdivision. As to criteria for involuntary hospitalization, see section 394.467(1), Florida Statutes (1979); in case of retardation, see chapter 393, Florida Statutes (1979). (c) Since commitment criteria for a defendant determined to be incompetent to stand trial are the same as for civil hospitalization, there is no need to continue the difference between felony and misdemeanor procedure. Section 916.14, Florida Statutes, makes the statute of limitations and defense of former jeopardy inapplicable to criminal charges dismissed because of incompetence of defendant to stand trial.
1988 Amendment. Title. The title has been amended to comply with changes in rule 3.210, but specifically excludes competency to proceed with sentencing, which is addressed in the new rule 3.214. (a) This provision was amended to reflect changes in rules 3.210 and 3.211. New language is added which specifies that, if charges are dismissed under this rule, it is without prejudice to the state to refile if the defendant is declared competent to proceed in the future. Similar language was previously found in rule 3.214(d), but is more appropriate under this rule. (b) This provision has been amended for the same reasons as (a) above. (c) This new provision specifically exempts this rule from being used against a defendant determined to be incompetent to be sentenced, which is now provided in the new rule 3.214. It is replaced by the new rule 3.214.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule. Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
Source of truth
- Edition
- October 1, 2026 edition
- Official file
- https://www-media.floridabar.org/uploads/2026/10/2027_04-Oct-Criminal-Procedure-Rules-10-1-2026.pdf (PDF pages 166–169)
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Florida Rules of Criminal Procedure
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