DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
In re Involuntary Placement of C.D.
C.D.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D22-2986
November 8, 2023
Appeal from the Circuit Court for Pasco County; James R. Stearns,
Judge.
Sara Mollo, Public Defender of Sixth Judicial Circuit, and Philip M.
Cohen, Assistant Public Defender, New Port Richey, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and James A. Hellickson,
Assistant Attorney General, Tampa, for Appellee.
LABRIT, Judge.
C.D. appeals an order that involuntarily placed him in an inpatient
treatment facility under the Baker Act, chapter 394, Florida Statutes
(2022).1 C.D. argues that the State failed to prove the statutory criteria
1 We treat C.D.'s appeal as a petition for writ of certiorari
reviewable under Florida Rule of Appellate Procedure 9.030(b)(2). See In
re Commitment of Reilly, 970 So. 2d 453, 455 (Fla. 2d DCA 2007) ("As a
general rule, certiorari is the proper vehicle for seeking this court's review
for involuntary placement by clear and convincing evidence, as section
394.467 requires. We agree.
Under subsection (1)(a)2 of section 394.467, the State had to prove
one of two things: either that "without treatment, [C.D.] [wa]s likely to
suffer from neglect or refuse to care for himself . . . , and such neglect or
refusal pose[d] a real and present threat of substantial harm to his . . .
well-being," § 394.467(1)(a)2.a; or that "[t]here [wa]s a substantial
likelihood that in the near future he . . . w[ould] inflict serious bodily
harm on self or others, as evidenced by recent behavior causing,
attempting, or threatening such harm," § 394.467(1)(a)2.b.
The trial court found the latter—that C.D.'s behavior posed a
substantial danger to others under section 394.467(1)(a)2.b—based on
testimony from the State's testifying doctor. But the doctor's testimony
was conclusory and did not identify any recent behavior through which
C.D. had caused, attempted, or threatened any serious bodily harm. At
most, the doctor testified that C.D. was "very argumentative" and "very
paranoid," that he "gets agitated and is threatening to the staff," and that
he "would be a possible risk" to himself and others without treatment.
This evidence is not clear and convincing, and it is insufficient to support
a finding that the State met the criteria in section 394.467(1)(a)2.b.2 See
of orders committing an individual involuntarily."). And we apply the
standard of review this court first outlined in In re Drummond, 69 So. 3d
1054, 1056–58 (Fla. 2d DCA 2011), and more recently reiterated in D.F.
v. State, 251 So. 3d 276, 279 (Fla. 2d DCA 2018).
2 The evidence was equally insufficient to establish the alternative
criteria in section 394.467(1)(a)2.a because neither the doctor's
testimony nor any other evidence the State presented specified the
nature of self-neglect or substantial harm that would arise if C.D. did not
receive treatment. See Sanders v. State, 242 So. 3d 464, 466 (Fla. 5th
DCA 2018); Lyon v. State, 724 So. 2d 1241, 1242–43 (Fla. 1st DCA
2009).
2
In re Lehrke, 12 So. 3d 307, 309 (Fla. 2d DCA 2009) (holding that
evidence of the patient's "threatening" and "agitated" behavior, without
more, was insufficient to support a finding that he was likely to inflict
serious bodily harm on himself or others); Wade v. Ne. Fla. State Hosp.,
655 So. 2d 125, 125 (Fla. 1st DCA 1995) (concluding that evidence of the
patient's "potential for aggression" and the "possibility of substantial
harm" was insufficient where "[t]here was no testimony as to prior
incidents involving substantial harm, nor any testimony as to the
manner in which future conduct might produce the necessary level of
harm under section 394.467(1)(a)2").
Thus, we grant C.D.'s petition and quash the order for involuntary
placement.
Petition granted; order quashed.
KELLY and LUCAS, JJ., Concur.
Opinion subject to revision prior to official publication.
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