Taxation & Estate Planning

2d DCA: Incompetency adjudication based upon 6-month old examination report is reversible error

By Juan C. Antúnez

In re Commitment of Reilly, --- So.2d ----, 2007 WL 4270584 (Fla. 2d DCA Dec 07, 2007)

As I've written about before [click here], an adjudication of incompetency must be based upon current evidence.  Evidence that is months old by the time a judge gets around to ruling is of little value - and will probably end up getting you reversed on appeal.  In this case the defendant was adjudicated incompetent under the following criminal-procedure rule:

On March 5, 2007, counsel for Reilly and counsel for the State stipulated to the “findings and the treatment recommendations of the October 25, 2006[sic] forensic competency evaluation provided to the Court by Dr. Paul S. Kling.” This stipulation was entered pursuant to section 916.12(2), Florida Statutes (2006), which permits the trial court to adjudicate a person incompetent if the parties stipulate to a finding of incompetence by one mental health expert. Subsequently, on May 4, 2007, the trial court held a hearing at which it accepted the parties' stipulation, adjudicated Reilly incompetent, and committed him for treatment. Reilly was present at the hearing and objected to the stipulation and the finding of incompetence. Reilly now seeks review of this adjudication and commitment by petition for writ of certiorari.

6-Month Old Report = Reversal on Appeal:

For probate practitioners, the interesting point in this case is the role played by a stale, 6-month old report in the incompetency adjudication.  This report was the basis of both the trial court's ruling and the 2d DCA's reversal.

In this case, the trial court based its May 4, 2007, determination that Reilly was incompetent on a report dated October 31, 2006. However, this six-month-old report did not, and could not, speak to Reilly's present ability to consult with his lawyer with a reasonable degree of rational understanding or his present rational and factual understanding of the proceedings against him. Accordingly, it did not provide competent, substantial evidence to support the trial court's finding that Reilly was presently incompetent to proceed. While we recognize that section 916.12(2) permits the trial court to adjudicate a defendant incompetent based on the stipulation of the parties to one mental health expert's findings, we do not believe that section 916.12(2) permits the court to rely on a stipulation to an expert's report that is so stale that it no longer speaks to the defendant's present competence.

Because Dr. Kling's report in this case was too stale to be relevant to Reilly's present competence, the trial court departed from the essential requirements of the law in relying upon it despite the parties' stipulation. Accordingly, we grant the petition and remand for further proceedings.

Lesson learned?

When it comes to incompetency adjudications, where is the dividing line between "too stale to be relevant" and non-contemporaneous, but still valid evidence?  Who knows, but based on this case, 6 months is definitely on the WRONG side of that line.

Full post as published by Florida Probate Litigation Blog on December 31, 2007 (boomark / email).