IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-1222
K. S.,
Appellee.
_____________________________/
Opinion filed October 2, 2015.
An appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.
Pamela Jo Bondi, Attorney General, and Jessica DaSilva, Assistant Attorney
General, Tallahassee, for Appellant.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellee.
ON MOTION TO DISMISS
MARSTILLER, J.
The State of Florida appeals the circuit court’s Amended Order Adjudging
Child Incompetent to Proceed and Committing Child to the Department of Children
and Families, arguing that the lower court erred in failing to order secure placement
for K.S. K.S. asserts that we should dismiss this appeal for lack of jurisdiction
because the rules of appellate procedure, though permitting state appeals from orders
finding a juvenile defendant incompetent to proceed, do not allow the State to
challenge the trial court’s ruling on secure placement.
The order at issue here qualifies as one from a “preadjudicatory hearing[ ],”
section 985.534(1)(b)8., Florida Statutes (2007), but it is nonfinal. See
§985.19(5)(a), Fla. Stat. (2014) (requiring trial court to retain jurisdiction for two
years after date of order of incompetency, with reviews at least every six months).
Appellate court jurisdiction to hear the State’s appeal from a nonfinal order requires
a court rule. See M.K., 786 So. 2d at 26 (citing Blore v. Fierro, 636 So. 2d 1329
(Fla. 1994)). Under Florida Rule of Appellate Procedure 9.145, in juvenile
delinquency proceedings, the State “may appeal an order . . . finding a child
incompetent pursuant to the Florida Rules of Juvenile Procedure.” Fla. R. App. P.
9.145(c)(1)(I). The question, then, is whether the lower court’s decision not to order
secure placement for K.S. is an appealable issue for the State within “an order . . .
finding a child incompetent.”
The language in section 985.19, Florida Statutes, which governs
incompetency determinations in juvenile proceedings, its procedural counterpart,
Florida Rule of Juvenile Procedure 8.095, indicates that the placement decision,
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though related to the incompetency determination, is a separate, distinct decision. In
pertinent part, the statute provides: “If the court finds that a child has mental illness,
intellectual disability, or autism and adjudicates the child incompetent to proceed,
the court must also determine whether the child meets the criteria for secure
placement.” §985.19(3), Fla. Stat. (2014). Similarly, rule 8.095(a)(4) says, “[i]f . .
. the child is found to be incompetent to proceed, the child must be adjudicated
incompetent to proceed and may be involuntarily committed as provided by law to
the Department of Children and Families for treatment[.]” Both section 985.19(3)
and rule 8.095(a)(4) speak in terms of two separate decisions—incompetency first,
then placement.
Furthermore, rule 9.145(c)(1)(I), governing state appeals in juvenile
delinquency cases, expressly refers only to the incompetency finding, and subsection
(c)(2)(B) reinforces the separateness of the decisions, providing that “[i]f a child has
been found incompetent to proceed, any order staying the proceeding on a state
appeal shall have no effect on any other order entered for the purpose of treatment.”
Reading the provisions together, we conclude that only the incompetency
determination is subject to nonfinal appeal by the State. The State may not appeal a
placement decision even if, as in this case, it is memorialized within the “order . . .
finding a child incompetent” as opposed to a separate order.
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For these reasons, we lack jurisdiction to review, by appeal, the placement
decision the State challenges here. See M.K., 786 So. 2d at 26-27. Accordingly, the
appeal is DISMISSED.
BENTON and ROWE, JJ., CONCUR.
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