# Petition — Florida v. Willie Allen Garrett

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 454 U.S. 1004

## Text

81-53 »

—
Office Supreme @ourt, U.S.
F II. E PD

JUL 9 1930
in the ALEXA!

int
of the
United States

October Term, 1981

THE STATE OF FLORIDA,
Petitioner,

vs.
WILLIE ALLEN GARRETT,
Respondent.

On Writ of Certiorari to the
District Court of Appeal of Florida,
Third District

PETITION FOR CERTIORARI

JIM SMITH JANET RENO
Attorney General of the State Attorney of the Eleventh
State of Florida Judicial Circuit of Florida

ANTHONY C. MUSTO ARTHUR JOEL BERGER
Assistant Attorney General Assistant State Attorney
Department of Legal Affairs 6th Floor

401 Northwest 2nd Avenue 1351 Northwest 12th Street
Suite 820 Miami, Florida 33125
Miami, Florida 33128 Tel. (305) 547-7095

Tel. (305) 377-5441

QUESTION PRESENTED FOR REVIEW

WHETHER THAT PARTICULAR HOLDING
OF JACKSON V. INDIANA, 406 US. 715 (1972),
LIMITING THE LENGTH OF PRETRIAL
DETENTION OF A LEGALLY INCOMPE-
TENT DEFENDANT PURSUANT TO A
PENDING CRIMINAL CHARGE, CAN VOID
A FINAL JUDGMENT OF CONVICTION FOR
FIRST-DEGREE MURDER ENTERED
FOLLOWING A PLEA OF GUILTY, WHERE
THAT DEFENDANT EVENTUALLY COULD
BE LEGALLY COMPETENT ONLY BY
MEANS OF PSYCHOTROPIC MEDICATION,
WAS ADJUDICATED LEGALLY COM-
PETENT TO STAND TRIAL AFTER SEVEN
YEARS FROM THE DATE OF HIS ARREST,
WAS AT ALL TIMES CIVILLY COMMITTA-
BLE AND WAS NOT SHOWN TO BE PREJ-
UDICED IN HIS ABILITY TO DEFEND AS
A RESULT OF THE LENGTH OF THE
DELAY?

TABLE OF CONTENTS

Page
QUESTION PRESENTED FOR REVIEW ....... i
TABLE OF CONTENTS ggg. ii
TABLE OF AUTHORITIES Eg... iv
r ccccccccccccssecsccce 1
JURISDICTIONAL STATEMENT ............. 1

CONSTITUTIONAL PROVISIONS INVOLVED. 1

STATEMENT OF THE CASE ................. 2
REASONS RELIED ON FOR ALLOWANCE
r 18
G ccccccccrevenssians 23
APPENDIX

Opinion of the Distriet Court of Appeal
of Florida, Third District ............... App. 1

Order of the District Court of Appeal of
Florida, Third District Denying Rehearing . App. 5

Order of the Supreme Court of Florida
Declining Jurisdiction ................-. App. 6

TABLE OF CONTENTS (Continued)

Page
Motion for Rehearing Filed by the State of
Florida in the District Court of Appeal of
Rennt App. 8

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES
Cases | Page

Barker v. Wingo,
. QO 5:00 FA as von e co eV vinws 19

Brown v. Jaquith,
318 So.2d 856 (Miss. 1975))ʒii . 22

Commonwealth v. Kerrigan,
— Pa. Super. Ct., 413 A.2d 729 (1979) ... 22

Commonwealth v. McQuaid,

464 Pa. 499, 347 A.2d 465 (1975 )). 20, 22
Campbell v. State,

265 Ark. 77, 576 S. W. 2d 938 (197999 20
Fare u Michael C.,

Ay ar eer eee 21
Fry v. State,

529 P.2d 521 (Okla. Crim. App. 1974).......... 20
Gerstein v. Pugh,

,,,, ceccvavactewes aes 19, 21

Harris v. State,
262 Ind. 208, 314 N.E. 2d 45(1974)............ 20

iv

TABLE OF AUTHORITIES (Continued)
Cases Page

In re Beverly,
. rrr 21

Jackson v. Indiana,
, en 18, 19, 21, 23

O Connor u Donaldson,
D, ̃²ĩ· -- ea eaeee 21

Ore gon u Hass,
c 21

People u Ealy,
49 Ill. App. 3d 922, 365 N.E. 2d 149(1977)...... 22

People v. Lang,
76 Ill. 2d 311, 391 N.E. 2d 350 (19790 ;.. 22

People v. Lang,
62 Ill. App. 3d 688, 378 N.E. 2d 1106 (1978) .. 20, 22

People v. Williams,
48 Ill. App. 3d 842, 362 N.E. 2d 1306 (1977) 22

State v. Bauer,
Minn. 299 N. W. 2d 493 (1980) ..... 20, 22

State v. Brown,
Ie 20

TABLE OF AUTHORITIES (Continued)
Cases Page

State v. Durham,
545 P.2d 805 (Okla. Crim. App. 1976).......... 20

State v. Johnson,
579 S. W. 2d 771 (Mo. Ct. App. 197999 20

State v. Superior Court of Maricopa County,
113 Ariz. 432, 556 P.2d 6 (19760))))) 22

State ex rel. Desinger v. Treffert,
85 Wis. 257, 270 N. W. 2d 402 (1978) 22

State ex rel. Haskins v. County Court of
Dodge County,

62 Wis. 2d 250, 214 N. W. 2d 575 (1974)......... 22
State ex rel. Porter v. Wolke,

80 Wis. 2d 197, 257 N. W. 2d 881(1977)......... 22
United States u Beidler,

417 F.Supp. 608 (M.D. Fla. 1976)............. 20
United States u Lancaster,

408 F.Supp. 225 (D. D. C. 1976) ............. 20, 22
United States v. MacDonald,

% 19

vi

TABLE OF AUTHORITIES (Continued)

Cases Page
United States v. Mills,

434 F.2d 266 (8th Cir. 1970 20
United States ex rel. Daniels v. Johnston,

328 F.Supp. 100 (S. D. N. V. 1971177777). 20
Weinstein u Bradford,

D on ce orien, ba kane a 21
Constitutions

R 1

vii

OPINION BELOW

The opinion to be reviewed is reported as Garrett
u State, 390 So.2d 95 (Fla. 3d DCA 1980).

JURISDICTIONAL STATEMENT

The opinion of the District Court of Appeal of
Florida, Third District was entered on November 4,
1980. (App. 1). Rehearing was denied by that court on
December 8, 1980 (App. 5). The Supreme Court of Florida
declined jurisdiction on April 10, 1981. (App. 6). Justice
Lewis F. Powell, Jr. entered an order extending the
time for filing this petition on June 2, 1981 and extended
the time for filing to July 9, 1981.

This Court's jurisdiction is invoked pursuant to 28
United States Code Section 1257(3).

CONSTITUTIONAL PROVISION INVOLVED

Amendment XIV, Section 1 of the Constitution of
the United States provides that:

***(NJor shall any State deprive any person of
life, liberty, or property, without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE*

On July 7, 1970, Defendant Garrett was indicted
for a first-degree murder committed on May 23, 1970.
On October 7, 1970, Defendant Garrett and two other
persons were charged with a second-degree arson, also
committed on May 23, 1970. (R. 1-1 [A]; 129-129 [A]).
Garrett faced maximum sentences of death and ten
years respectively.

The arson, consisting of firebombing of a bar, occurred
at approximately 12:00 A.M. Shots had been fired. The
homicide consisted of the shooting of a police officer
approximately three hours later and four blocks away.
The Defendant was arrested on the same day that both
crimes were committed. (R. 1, 73; SR. 8).

Attorney Louis Beller, who had represented the
Defendant at an earlier preliminary hearing, was formally
appointed to represent Garrett on July 9, 1970, following
an oral colloquy with the Defendant, himself. When the
court attempted to arraign the Defendant on the homicide
charge, his attorney stated both that the Defendant
mentioned that he had hallueinations and that the
Defendant either attempted suicide or had cut his wrist.
This attorney also stated that he uncovered a previous
commitment to a mental institution in Texas. Attorney

»The record on appeal will be referred to by the symbol R“.
That portion of the record on appeal bound and designated as the
transcript of proceedings will be referred to by the symbol “TR”.
The supplemental record on appeal will be referred to by the
symbol “SR”. Pleadings filed directly in the lower appellate court
subsequent to the filing of the record on appeal will be mentioned
without a record citation, because none exists. The appendix to
this petition will be referred to by the symbol “App”.

Beller pled the Defendant not guilty and not guilty by
reason of insanity. The defense then requested
appointment of psychiatrists to examine the Defendant.
The State requested a speedy trial in the interest of
justice. Defense counsel objected, based on the need to
assess Garrett's competency to stand trial and defense
counsel’s belief that Garrett “may be too insane to
cooperate with counsel.” The trial judge stated that he
was going to give the Defendant a speedy trial, but put
off setting a trial date until after a competency hearing.
(R. 63-75).

Pursuant to a court order, a psychiatrist, Dr. Mutter,
evaluated the Defendant. His written report revealed
the following: Conversation with the Defendant revealed
prior violent behavior, shock treatment, and a four
year hospitalization in Texas from 1964 to 1968 where
he had been given psychiatric treatment and placed on
different tranquilizers. Garrett told this psychiatrist of
hearing voices, of “other incidents of cutting up people,”
and of cutting himself in jail because “Little Mama
made [him] do it.” Garrett also revealed some facts
concerning the homicide. Dr. Mutter diagnosed the
Defendant as having paranoid schizophrenia and concluded
that the Defendant was “currently incapable of aiding
in the preparation of his own defense.” Dr. Mutter
concluded that “[bJjased on available history, it is within
medical probability” that Garrett was insane at the
time of the crime, and stated, “I consider him extremely
dangerous to himself and others.” (R. 142-143).

On September 14, 1970, a competency hearing was
held. (TR. 1). Psychiatrist Jacobson testified that Garrett
was suffering from paranoid schizophrenia, and was

probably so afflicted for the past five to ten years. Dr.
Jacobson felt “with some reservations” that Garrett
was competent to stand trial. This psychiatrist qualified
that “my principal concern in terms of his ability to
stand trial would be in insuring that he could maintain
his attentiveness and ability during trial.” Dr. Jacobson
stated that Garrett’s prognosis was “poor for a significant
long-term remission and that future episodes are likely
to recur,” and testified that Garrett was a danger to
society at this time. Dr. Jacobson recommended that
the Defendant “should be admitted to a facility for
long-term treatment.” (TR. 4-10).

Dr. Jaslow, a psychiatrist, testified that Garrett
was able “to relate to me the circumstances surrounding
the. . .crime” and was “probably” competent to stand
trial. However, under defense questioning, Dr. Jaslow
stated that there was a “possibility” that Garrett might
not be able to assist his attorney. As to future prognosis,
this psychiatrist believed that Garrett's schizophrenic
illness was chronic and that “there would be eligibility
. . for repeated episodes of the disturbance where it
comes out.. . , more openly, other times with remissions
either with or without medication,” and that Garrett's
condition would deteriorate without “extended help.”
Dr. Jaslow did note that it was conceivable that Garrett
could decompensate more during the course of a trial.
This psychiatrist was of the opinion that it was “possible”
that violence could occur in the future and recommended
that present hospitalization and intensive treatment
“would be the best thing” for the Defendant’s benefit.
(TR. 10-18).

Dr. Mutter testified, consistently with his above-
summarized written report, that the Defendant was

4

not competent to stand trial, that the illness could go
into a period of remission but reoccur, and that the
nature of Garrett’s delusions make him “extremely
dangerous.” This psychiatrist elucidated that if the
voice told Garrett to kill the judge, “he would get out
of his chair and try to kill [the judge] or me or anybody
in this room.” Garrett was a person of violent propensities,
who might be a danger to himself and those surrounding
him. Dr. Mutter recommended commitment to an
institution. (TR. 21-25).

The judge adjudicated the Defendant incompetent
to stand trial and committed him to a state hospital in
Chatahoochee, Florida. (TR. 27-29).

In an October, 1971 letter, the hospital indicated
that Garrett was competent to stand trial. (R. 140-141).
The trial judge appointed the same three psychiatrists
to evaluate Garrett. (R. 149). In their November reports,
the psychiatrists expressed different views. While noting
that the Defendant had been receiving large doses of
anti-psychotic medication, Drs. Jaslow and Jacobson
concluded that Garrett was competent to stand trial.
Dr. Jacobson asserted that Garrett's remission was
“marginal.” Dr. Jaslow indicated that the Defendant
“may have been” acutely psychotic at the time of the
crime, but that this doctor lacked objective material to

Prior t the competency ruling, defense counsel indicated a
willingness to waive a jury trial. The court responded that such
“is always a problem from decisions around the country, whether
you can waive [jury] in circumstances like this.” (TR. 26). Contrary
to what the lower appellate court indicated, the record does not
reflect that Garrett waived his right to a jury trial either at this
time or at any time prior to his 1978 plea.

permit a valid opinion. Dr. Mutter stated that Garrett
could not be properly evaluated because he was on
high doses of anti-psychotic medicine, that Garrett was
going into remission, and that, if Garrett was released,
he could become dangerous to himself and the community.
Dr. Mutter expressly recommended that Garrett be
withdrawn from all medication for a minimal period of
thirty days and then be reevaluated to determine his
competency to stand trial. (R. 136-139, 144-145). The
trial judge received a request from one state hospital
that judges not order the hospital to accept patients
without medication, due to limitations on hospital capacity.
The trial judge then wrote to the three psychiatrists
and, in light of the hospital's request, asked to be
advised if they still believed that Garrett should be
returned to the hospital with instructions that he should
be taken off medication and then should be reevaluated.
Approximately ten days later, the judge ordered that
Garrett be returned to the hospital, and that the hospital
withdraw all medication and reevaluate him to determine
his competence to stand trial. (R. 42-44, 148).

A different judge was assigned to try Garrett's
arson charge. The Defendant remained at the jail and
appeared before the second judge in March of 1972.
When his case was called, Garrett rose in the jury box,
holding what turned out to be a fake bomb which he
had ignited. The entire courtroom was evacuated. After
being informed that the first judge had ordered Garrett
to the hospital, the second judge ordered Garrett to
the hospital “as soon as practically possible.” (SR. 2-6).

In September of 1972, the hospital sent a letter to
defense counsel, which stated that Garrett had not

been given medication and that, without medication,
Garrett had remained competent. Defense counsel had
filed a motion to have the Defendant returned to Miami,
Florida to be reevaluated for competency to stand trial.
A November, 1972 letter from the hospital to the court
stated that Garrett had been without medication for
six weeks and was deemed competent to stand trial. In
March of 1973, the trial judge appointed five doctors to
evaluate Garrett, including the three previous
psychiatrists and two new psychologists. (R. 146, 157,
159-160, 172).

In their April, 1973 reports, all three psychiatrists
and one psychologist concluded that Garrett was
incompetent to stand trial, represented a serious danger
to himself and others, and needed hospital treatment.
Both Drs. Jaslow and Jacobson described Garrett as
probably more disturbed now than in the past. Dr.
Jaslow suggested additional treatment at a hospital
with the recommendation that “medications could be
helpful.” Dr. Jacobson described the Defendant's behavior
as “quite unpredictable.” Dr. Mutter recommended that
Garrett be recommitted until he went into remission,
and “suggested that, when he is felt to be in remission,
he be withdrawn from all medication for a minimal
period of sixty days to determine his ability to remain
emotionally stable.” Noting that Garrett had “a great
lability” and had demonstrated that his illness could
easily be exacerbated, Dr. Mutter stated that Garrett
“should not be released under any circumstances.” (R.
173-178, 180-182).

On April 12, 1973, the judge, who was assigned to
the homicide case, held a hearing and recommitted

Garrett to the hospital with instructions that, after it
was determined that Garrett had gone into remission,
Garrett's medication should be withdrawn for sixty
days to determine his ability to remain emotionally
stable. Defense counsel orally moved to have Garrett
adjudicated not guilty by reason of insanity pursuant
to a new Florida rule of criminal procedure, Fla.R.Crim.P.
3.210(a)(5) (1973). That motion was denied. Several days
later, Garrett appeared before the second judg who
was assigned to the arson case. That judge reserved
ruling on the same motion, but stated that he would
rule in accordance with the appellate court decision
which would result from the defense’s appeal of the
first judge's ruling on Garrett’s motion for an adjudication
of insanity. (TR. 39-44; R. 131, 179, 184). That appeal
was subsequently dismissed in October of 1973. Garrett
u State, 283 So.2d 905 (Fla. 3d DCA 1973).

Pursuant to the hospital's request that Garrett be
returned, an order was entered in March of 1974, that
the Defendant be returned to Miami and evaluated by
Drs. Mutter and Jaslow. This order did not contain a
prohibition on giving medication to the Defendant. In
their April, 1974 reports, both psychiatrists found Garrett
competent to stand trial. However, Dr. Mutter ended
his report by stating (1) that Garrett “cannot be properly
evaluated when he is under such high doses of anti-
psychotic drugs,” (2) that it was “most probable” that
Garrett would decompensate and become a danger to
himself and others, if his medication was stopped, (3)
that the ideal form of treatment for Garrett would be
rehospitalization and continued psychiatric treatment
“until he is at the point where he might be able to
remain in remission without the use of anti-psychotic
drugs,” and (4) that Garrett was “still unstable and

should be returned to a confined setting until he [was]
more stabilized,” be given further treatment and be
reexamined “to determine his ability to maintain
stabilization in the community.” (R. 190, 194-198).

The homicide case was reassigned to the judge
who had been assigned to the arson case. (R. 193). At a
June 26, 1974 hearing, it was revealed that Garrett had
“attacked one of the [jail] nurses who went to administer
medication.” Defense counsel asserted that, based on
his conduct in the jail, Garrett was not competent to
stand trial now and would probably never be competent
to stand trial. Defense counsel moved to have the
Defendant declared not guilty by reason of insanity
and committed to a mental hospital. This trial judge
stated that he had “no report that says [Garrett] will
never be competent” and that the last report to the
court was that Garrett as competent. The judge denied
the defense request “to just instanter find him not
guilty by reason of insanity” and ordered Garrett
recommitted to a hospital. The written commitment
order contained no prohibition regarding the
administration of medication to the Defendant. (TR.
46-51; R. 3).

In mid-August of 1974, approximately one and one-
half months after the last court hearing, the hospital
wrote the court and communicated that Garrett was on
medication, that he was competent to stand trial, that
he could only be maintained in remission by medication,
and that he had “the potential for dangerous behavior
in the community.” The hospital also wrote that Garrett's
commitment “ought not to continue indefinitely and
that some other disposition be considered.” (R. 4-5). In

September of 1974, the trial judge denied the hospital’s
request to return Garrett to court “at this time.” (R. 6).

In November of 1974, the hospital presented Garrett's
case to a hearing examiner, who ordered Garrett
involuntarily hospitalized for a four month period. In
May of 1975, Garrett again appeared before a hearing
examiner, who ordered Garrett involuntarily hospitalized
for one year and recommended that he be returned to
court. (R. 10).

A third judge was now assigned both cases. In
August of 1975, the hospital requested that Garrett be
returned to court. A July, 1975 hospital memorandum
reflected that Garrett was on medication and had received
psychotherapy, occupational therapy and recreational
therapy. This memorandum revealed that Garrett engaged
in fighting and aggressive behavior on several occasions,
and that, as a result, Garrett spent his entire stay in
the hospital on a closed ward. (R. 8-10). The trial judge
ordered Garrett returned and appointed Drs. Mutter,
Jaslow and Jacobson to examine him. (TR. 59-63, R.
11-12).

In their September, 1975 reports, all three
psychiatrists opined that Garrett was competent to
stand trial, although two of these doctors observed
that Garrett was receiving very high doses” of
psychotropic medication. During an interview with Dr.
Mutter, the Defendant was able to relate facts concerning

10

the homicide.’ Dr. Mutter also expressed his view that
“[djespite the outcome of this case [Garrett] should not
be released under any circumstances unless it can be
shown that he can function in a normal manner, and not
be dangerous to himself or others with reduced
medication.” (R. 15-21).

A trial court hearing was held on October 2, 1975.
A prosecutor stated that the Defendant was heavily
medicated and requested that the Defendant be taken
off medication and evaluated. That prosecutor stated,
“It’s like chaining a man down so he can’t move his
arms, legs or anything, and [saying], ‘Well, he didn’t
swing at me.’ I mean it is just absurd to evaluate a man
this way.” Defense counsel requested that Garrett be
permitted to stand trial, based on the psychiatric reports.
After argument, the trial judge changed her mind and
granted the prosecutor’s request, stating, I don’t think
that’s the meaning of the law. The law is if he is competent
to stand trial. It doesn’t say if he takes enough medicine
not to be violent he is competent to stand trial.” That
day the judge entered a written order directing that
the jail refrain from giving any medication to the
Defendant, and appointing psychiatrists to reexamine
the Defendant. (TR. 65-68; R. 22).

This report provides: Garrett] stated, ‘We were at a night
club. Me and my friend were there. I tried to tell the police that I
was sick and wanted to go to the hospital. I could recognize my
sickness but I had it before. I was hearing voices. The police came
and stopped my friend and me. The police were beating on him. I
told him to run. He ran. I ran and then came back to the scene. The
police officer was staggering. I got a gun and told him to stop. He
turned around. I thought he was going to shoot me, then I shot

him.

11

In their November, 1975 reports, both psychiatrists
concluded that Garrett had severely regressed and
was no longer competent to stand trial, as a result of
the withdrawal of medication. Dr. Mutter stated that
Garrett should not be released under any circumstances
because he was “extremely dangerous.” That doctor
also stated, “It is quite apparent that his former psychiatric
treatment consisted only of drug therapy and not any
type of psychotherapy where he could have gained
insight into his problem and gained greater ego strength.”
Dr. Mutter recommended that Garrett be recommitted
to a hospital “for long-term treatment, psychotherapy
as well as chemotherapy, so that he may be properly
rehabilitated to the extent that he does not pose a
danger to himself or others.” (R. 201-204).

On December 3, 1975, defense counsel requested a
hearing to have the Defendant adjudicated not guilty
by reason of insanity on the grounds that there was no
substantial probability that Garrett would become
competent in the forseeable future, and that no progress
was being made toward the goal of making Garrett
competent. The trial judge noted that insanity at the
time of the commission of the crime was a question of
fact to be determined by the jury and denied the defense
motion “at this time.” Based on the recent psychiatric
reports, the judge found that Garrett was incompetent
to stand trial “at this time” and recommitted him to a
hospital. (TR. 74-79; R. 23, 205).

Hospital correspondence of June 4, 1976, requested
that Garrett be returned to court, since Garrett was
treated with “a full range of hospital programs including
psychotherapy,” had not been on psychotropic medication

12

for over two months and was legally competent. (R.
24-26). Ten days later, the hospital sent another letter
requesting that Garrett be retained at the hospital
because he had decompensated and was no longer
competent to stand trial. (R. 27). In August of 1976, the
hospital asserted that Garrett was competent to stand
trial, and requested his return to court with the
recommendation that Garrett should be kept on
psychotropic medication, due to his tendency to
decompensate in its absence. (R. 29-31).

The trial judge ordered that the Defendant should
be returned to Miami, directed that he should be held
in the jail for four months without medication, and
appointed three psychiatrists to evaluate him. (TR.
85-88; R. 33, 37, 206).

In October of 1976, the trial court denied a defense
motion (1) to have the judge adjudicate the Defendant
not guilty by reason of insanity and civilly commit him,
and (2) to provide the Defendant with medication
immediately, on the ground that the court order depriving
him of medication amounted to cruel and unusual
punishment. (R. 135, 209-210 [A).

After examining Garrett when he had been without
psychotropic medication for several months, all three
psychiatrists concluded in their February, 1977 reports
that Garrett was not competent to stand trial. Based
on his interview with the Defendant, Dr. Jacobson stated,
“[T]here is some possibility that he does exaggerate
and alter his symptomatology for conscious reasons,”
although he was suffering from a schizophrenic
disturbance. That psychiatrist also rendered the opinion

13

that “there is a possibility and not an improbable or
unlikely one, that the defendant could acquire competency
for trial if he were maintained on anti-psychotic
medication,” while asserting that the converse would
be true if the Defendant was not allowed to take
medication. Dr. Jaslow noted that Garrett did express
certain ideas that showed the ability to think and reason.
Finally, Dr. Mutter also concluded that Garrett was
homicidal, should not be released under any
circumstances,” and had the propensity to repeat his
homicidal behavior while in a psychotic state. That
psychiatrist recommended that Garrett be committed
to a mental facility “until . . . he is able to enter a
state of remission without benefit of medication.” (R.
211-220).

The defense filed a motion claiming (1) that the
Defendant was entitled to discharge for violation of his
federal and Florida rights to a speedy trial, (2) that
Garrett's continued confinement on the basis of his
incompetency violated due process under Jackson u
Indiana, 406 U.S. 715 (1972), and (3) that the judge
should adjudicate the Defendant not guilty by reason
of insanity and civilly commit him pursuant to the
provisions of a Florida rule of criminal procedure. (R.
40-41).

On March 2, 1977, a lengthy hearing was held on
the Defendant's motion. The defense stipulated that
Garrett was presently incompetent and a possible danger
to himself. Drs. Jaslow, Mutter and Jacobson all testified
that there was a substantial probability that Garrett
would be competent in the forseeable future, if the
court permitted him to be maintained on psychotropic

14

medication. The trial judge asked Dr. Mutter whether,
if Garrett were receiving intensive psychotherapy, he
could conceivably regain competency to the point where
he could be maintained on lighter doses of psychotropic
medication and not decompensate if the medication
was stopped for a short period of time. That psychiatrist
answered that there was a “great possibility, even
probability” that this could be done and that it “would
give him a better chance than if he were just treated
on medication alone.“ Dr. Jacobson testified that
psychotropic medication had drawbacks, had side effects
and was occassionally ineffective, but that Garrett
tolerated his medication well and did not seem to suffer
much in the way of secondary effects. Dr. Jaslow testified
that he had not observed that Garrett was suffering
from any side effects, and could not think of a medical
reason for curtailing the medication if Garrett was not
showing any serious side effects. The clinical director
of one of the state hospitals testified that it was “poor”
medical practice to deprive Garrett of his medication
and that his hospital lacked enough staff to give verbal
insight therapy. (TR. 91-184).

Following the taking of testimony, the prosecution
requested that Garrett be recommitted, returned to
competency, and, thereafter, maintained on psychotropic
medication “so we can try him.” The trial court denied
Garrett’s motion on all grounds, found the Defendant
incompetent to stand trial “at this time” and committed
him to the hospital. (TR. 199, 209-210; R. 41 [A], 45-46).

In August of 1977, the hospital informed the court

that Garrett was competent to stand trial with medication.
(R. 47-48). In October, the defense rejected a stipulation

15

that Garrett was competent to stand trial and requested
a hearing on this issue. (R. 55-59).

On November 1, 1977, a competency hearing was
held. The prosecution called five witnesses from the
state mental hospital in support of its position that
Garrett was competent. Defense counsel Beller argued
that Garrett was not competent to stand trial, because
he was in remission only due to psychotropic medication
and because this attorney could not determine whether
the medication would affect Garrett's ability to confer
with counsel. The prosecutor argued that the unanimous
opinion of all of the witnesses was that Garrett was
competent to stand trial, and, further, that there were
no indications by case law, statute or state court rules
of criminal procedure that a defendant could not lawfully
be tried while competent as a result of psychotropic
medication. Following argument, the trial judge ruled
that Garrett was competent to stand trial. (TR. 216-248;
R. 62).

A December trial date was changed to the end of
January, 1978, as a result of the defense's assertion
that the first trial date was much too early. in mid-
January, the trial judge denied a defense motion to
discharge Garrett for a speedy trial violation. In mid-
January, the defense then sought a writ of prohibition
from the appellate court and obtained an order to show
cause. However, the prohibition proceedings were
subsequently dismissed on March 3, 1978 in State ex
rel. Garrett v. Morphonios, 356 So.2d 392 (Fla. 3d DCA
1980). (TR. 252; R. 77-78, 95-107).

On April 24, 1978, Garrett pled guilty to both
crimes. He was sentenced to life imprisonment and a

consecutive ten year sentence. The Defendant's plea
was subsequently changed by counsel to utilize a
procedure allowing Garrett to take an appeal.’ Garrett
expressly and exclusively limited his appeal to the
issue of whether his federal and Florida speedy trial
rights were violated. (R. 108-115; 239, 241; TR. 276-283).

Both the Defendant and the State of Florida filed
briefs in the lower appellate court, which briefs exclusively
addressed Garrett's speedy trial claims. The decision
of Jackson v. Indiana, 406 U.S. 715 (1972), was not
relied on at all in these briefs.‘

On November 4, 1980, the lower appellate court
surprised the State of Florida by rendering a decision
based exclusively on Jackson u Indiana, supra. The
lower appellate court did not address the Defendant's
speedy trial claims at all. (App. 1-4).

In a lengthy motion for rehearing, the State of
Florida contended (1) that the appellate court decided
this case on an issue not before it and should resolve
this case solely on speedy trial grounds, and (2) that
Jackson was misinterpreted by the court in that Jackson
did not require discharge from criminal liability merely

This procedure is authorized under Florida law by means of
a plea of nolo contendere, but permits only an appeal of legal
issues that would be dispositive of the case. Brown u State, 376
So.2d 382 (Fla. 1979); State u Ashby, 245 So.2d 255 (Fla. 1971).

‘Jackson was cited by the State of Florida solely as an historical
fact in a parenthetical note, while commenting on Dr. Mutter's
past recommendations in terms of the Defendant's speedy trial
claims.

17

because a defendant is incompetent and not substantially
likely to regain competence in the forseeable future,
but rather required release from confinement pending
trial. (App. 8-17). The appellate court entered an order
denying this motion for rehearing, without further
discussion. (App. 5).

REASONS FOR GRANTING THE WRIT

In Jackson v. Indiana, 406 U.S. 715 (1972), this
Court reviewed a pre-trial order committing a criminal
defendant to a mental hospital pending trial. That
defendant was not mentally ill in the medical sense,
but was handicapped to the degree that he was then
legally incompetent to be tried consistent with the
Constitution. This Court found due process and equal
protection deficiencies in the Indiana pre-trial commitment
procedure that would, in effect, permit indefinite
confinement of that criminal defendant, without the
rights and protections given to similarly handicapped
non-criminally-charged persons and without a trial to
determine his guilt or innocence on the very criminal
charges which were being used as the exclusive basis
for his confinement. Regarding release from the mental
institution pending trial, this Court held that such
detention for trial must be limited to no “more than the
reasonable period of time necessary to determine whether
there is a substantial probability that [the defendant]
will attain [the] capacity [to stand trial] in the forseeable
future.” Id, 406 U.S. at 738. This Court also held that,
even if the first condition for continued confinement
was realized, continued commitment must be justified
by progress toward the goal of legal competency to

18

stand trial. After ruling on the lawfulness of Jackson's
pre-trial detention, this Court commented on the right
to try the defendant on the pending criminal charges,
but expressly refrained from ruling on that issue. This
Court did suggest, “Dismissal of the charges against an
incompetent accused [is] justified on... the... right to
a speedy trial, or the denial of due process inherent in
holding pending criminal charges indefinitely over the
head of one who will never have a chance to prove his
innocence.” Jd, 406 U.S. at 740. This latter portion of
Jackson was unambigously separated from the pre-trial
detention issues.

Jackson did not hold that any right to release from
pre-trial detention pending trial also constituted a right
not to be tried on the criminal charges. Indeed, it is an
established rule of federal constitutional law that an
“illegal... detention does not void a subsequent
conviction.” Gerstein u Pugh, 420 U.S. 103, 119 (1975).

In the instant case, the lower appellate court reversed
Garrett's judgment of conviction solely “on the basis
that, under the holding of Jackson u Indiana, 406 U.S.
715... (1972), he should never have been brought to
trial.” Noting that Jackson was decided on due process
and equal protection grounds, the particular holding,
on which this decision was based and which was quoted
in the opinion, was that portion of Jackson addressing
the right to pre-trial release from a mental institution.“

*The lower appellate court never analyzed the facts in terms
of the speedy trial analysis mandated by Barker u Wingo, 407 U.S.
514 (1972), and the status of the case at the time of the plea,
United States v. MacDonald, 435 U.S. 850 (1978). From a speedy
trial perspective, the State of Florida's position that Garrett was

(App. 2-3) The lower court concluded (App. 3-4):

On these facts, we find Garrett to have been
held more than a “reasonable period” without
the requisite determination of the likelihood
of his eventual ability to stand trial. Moreover,
since it appears that the trial court was of the
opinion that Garrett was per se incompetent
while under the influence of his medication —a
belief not legally untenable until 1977 (when
Section 918.1504 a), supra, was passed), it is
clear that had the court held the hearing
mandated by Jackson, at any time prior to
1977, it would necessarily have found Garrett
permanently incompetent. Under Jackson, the
trial court should have entertained civil
commitment proceedings by the state, or
released him.

We reverse and order that the court below
discharge Garrett unless the State shall elect
to commence civil proceedings within thirty
days from the issuance of our mandate.

(Footnote 5 Continued)

not entitled to a dismissal of charges is strong. See, e. g., United
States u Mills, 434 F.2d 266 (8th Cir. 1970); United States u
Beidler, 417 F Supp. 608 (M.D. Fla. 1976); United States u Lancaster,
408 F.Supp. 225 (D. D. C. 1976); United States ex rel Daniels u
Johnston, 328 F.Supp. 100 (S.D.N.Y. 1971); Campbell u State, 265
Ark. 77, 576 S.W. 2d 938 (1979); People v. Lang, 62 Ill. App. 3d 688,
378 N. E. 2d 1106 (1978); Harris u State, 262 Ind. 208, 314 N. E. 2d
45 (1974); State u Bauer. Minn. , 299 N. W. 2d 493 (1980); State u
Brown, 502 S. W. 2d 295 (Mo. 1973); State u Johnson, 579 S. W. 2d
771 (Mo. Ct. App. 1979); State u Durham, 545 P.2d 805 (Okla. Crim.
App. 1976); Fry u State, 529 P.2d 521 (Okla. Crim. App. 1974);
Commonwealth v. McQuaid, 464 Pa. 499, 347 A.2d 465 (1975).

20

It is clear from the face of this opinion that this
case was resolved exclusively on a federal constitutional
basis. This analysis and result directly conflicts with
the aforementioned decisions of this Court.’ A State
may not impose greater restrictions, as a matter of
federal constitutional law, when this Court specifically
refrains from imposing them. Fare u Michael C., 442
U.S. 707 (1979); Oregon v. Hass, 420 U.S. 714 (1975).

It is clear that Garrett was not illegally incarcerated prior to
being adjudicated competent to stand trial.

It is indisputable that Garrett was civilly committable during
the entire period of time which elapsed prior to his guilty plea and
that such a commitment would have been constitutional. O'Connor u
Donaldson, 422 U.S. 563 (1975); In re Beverly, 342 So.2d 481 (Fla.
1977).

No psychiatrist suggested that Garrett could not attain legal
competence in the forseeable future. Unlike the factual situation
in Jackson, Garrett was mentally ill, suffering from paranoid
schizophrenia. Treatment takes time. Given the seriousness of a
charge of first-degree murder and the nature of Garrett's illness,
the seven year period that was consumed before Garrett was
adjudicated legally competent cannot be deemed constitutionally
unreasonable. And, of course, the best demonstration of what
could be was what did occur. Garrett was adjudicated competent
to stand trial within seven years.

Although bail was never sought, it cannot now be seriously
contended that Garrett would have been released on bail, even if
it is assumed that Garrett was not mentally ill.

Finally, any issue that Garrett had been entitled to release
pending trial became moot after his guilty plea. See Weinstein v.
Bradford, 423 U.S. 147 (1975); compare Gerstein u Pugh, 420 U.S.
103 (1975). In this regard, the lower appellate court ruled on a
controversy that no longer existed.

21

Moreover, the decision sub judice directly conflicts
with the following decisions of other state courts of
last resort. State u Superior Court of Maricopa County,
113 Ariz. 432, 556 P.2d 6 (1976); People u Lang, 76 Ill. 2d
311, 391 N.E. 2d 350 (1979); People u Lang, 62 Ill. App.
3d 688, 378 N. E. 2d 1106 (1978); People u Ealy, 49 Ill.
App. 3d 922, 365 N.E. 2d 149 (1977); People u Williams,
48 III. App. 3d 842, 362 N. E. 2d 1306 (1977); State u
Bauer, Minn. , 299 N. W. 2d 493 (1980); Brown
u Jaquith, 318 So.2d 856 (Miss. 1975); Commonwealth v.
McQuaid, 464 Pa. 499, 347 A.2d 465 (1975); Commonwealth
v. Kerrigan, Pa. Super. Ct. 413 A.2d 729
(1979); State ex rel. Desinger v. Treffert, 85 Wis. 257,
270 N.W. 2d 402 (1978); State ex rel. Porter v. Wolke, 80
Wis. 2d 197, 257 N.W. 2d 881 (1977); State ex rel. Haskins
v. County Court of Dodge County, 62 Wis. 2d 250, 214
N.W. 2d 575 (1974).’ Those decisions show that the
Jackson right to release from a mental institution pending
trial, itself, does not vitiate the right of the government
to later try a defendant for his crime.

By equating the right to release from a mental
institution pending trial with the right to pre-trial release
on bail, the legal error in the analysis employed by the
lower appellate court becomes glaringly apparent.

Recent history has shown that the mentally ill, or
those claiming mental illness, have committed and will
continue to commit crimes that shock the nation. The
frustration that the general public has with the judicial
response to mental illness in the criminal justice system

The lower appellate court's decision also conflicts with United
States u Lancaster, 408 F.Supp. 225 (D. D. C. 1976).

is great. The question presented for review in this case
is a substantial one in terms of its effect on the
administration of criminal justice. The recurring nature
of this problem warrants a clarification of Jackson u
Indiana, 406 U.S. 715 (1972) by this Court.

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion in Garrett u
State, 390 So.2d 95 (Fla. 3d DCA 1980).

Respectfully submitted,
JIM SMITH JANET RENO
Attorney General of the State Attorney of the Eleventh
State of Florida Judicial Circuit of Florida
By: /s/_ By: /s/
ANTHONY C.MUSTO ARTHUR JOEL BERGER
Assistant Attorney Assistant State Attorney
General 6th Floor

1351 Northwest 12th Street
Miami, Florida 33125
Tel. (305) 547-7095

Counsel for Petitioner

Appendix

IN THE DISTRICT COURT
OF APPEAL OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 1980

CASE NO. 78-1098

WILLIE ALLEN GARRETT,
Appellant,

vs.

THE STATE OF FLORIDA,
Appellee.

Opinion filed November 4, 1980.

An Appeal from the Circuit Court for Dade County,
Ellen Morphonios Gable, Judge.

Terry L. DeMeo; Louis R. Beller; Bruce J. Winick,
for appellant.

Jim Smith, Attorney General and Steven L. Bolotin,
Assistant Attorney General, for appellee.

Before HUBBART“, C. J., and HENDRY and NESBITT,
JJ.

*Judge Hubbart participated in the decision in this case but
did not hear oral argument.

App. 1

PER CURIAM.

Appellant was arrested on May 23, 1970, and charged
with first-degree murder of a police officer, and arson
in the second degree. Trial by jury was waived. At his
arraignment on July 9 of that year, the issue of his
competency was first raised. Three psychiatrists were
appointed at that juncture to assess Garrett’s ability
to participate meaningfully in his defense. After receiving
the evaluation reports of the three experts, the court
found Garrett incompetent to stand trial. He was placed
into the custody of the state’s Division of Mental Health,
Department of HRS, and admitted into Florida State
Hospital at Chattahoochee for restoration to competency.
There he was treated with psychotropic medication,
and his symptomatology entered a period of remission.
On October 14, 1971, the Clinical Director of that
institution informed the court that appellant had been
turned over to the Dade County Sheriffs Office for
further disposition, i.e. to stand trial.

Thereafter, the court ordered Garrett removed
from all medication, to assess the change, if any, in his
faculties. Garrett soon relapsed into his earlier psychotic
state, and was thereupon returned to Chattahoochee.

This process of remission and relapse occurred
repeatedly over the next six years, until Garrett was
finally positively evaluated for competency while under
medication pursuant to Section 918.15(4)(a), Florida
Statutes (1977). He entered a nolo plea, reserving the
right of appeal to this court.

We reverse the judgment of the court below on
the basis that, under the holding of Jackson v. Indiana,

7 App. 2

406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), he
should never have been brought to trial.

Jackson was a twenty-seven-year-old deaf-mute of
pre-school mentality arrested for two robberies netting
him a total of nine dollars. Obviously unable to assist in
his own defense, he was committed to the Indiana
equivalent of Chattahoochee, until such time as he
should be ready to stand trial. After a period of years,
his incarceration was challenged on due process and
equal protection grounds. After state court avenues of
relief had been exhausted, his case was heard by the
Supreme Court, which held, inter alia, that

a person charged by a State with a criminal
offense who is committed solely on account of
his incapacity to proceed to trial cannot be
held more than the reasonable period of time
necessary to determine whether there is a
substantial probability that he will attain that
capacity in the foreseeable future. If it is
determined that this is not the case, then the
State must either institute the customary civil
committment proceeding that would be required
to commit indefinitely any other citizen, or
release the defendant.

32 L.Ed.2d at 451.

On these facts, we find Garrett to have been held
more than a “reasonable period” without the requisite
determination of the likelihood of his eventual ability
to stand trial. Moreover, since it appears that the trial
court was of the opinion that Garrett was per se

App. 3

incompetent while under the infiuence of his medication
— a belief not legally untenable until 1977 (when Section
918.15(4\a), supra, was passed), it is clear that had the
court held the hearing mandated by Jackson, at any
time prior to 1977, it would necessarily have found
Garrett permanently incompetent. Under Jackson, the
trial court should have entertained civil commitment
proceedings by the state, or released him.

We reverse and order that the court below discharge
Garrett unless the state shall elect to commence civil
proceedings within thirty days from the issuance of
our mandate.

App. 4

IN THE DISTRICT COURT OF APPEAL
OF’ FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 1980
MONDAY, DECEMBER 8, 1980

CASE NO. 78-1098

WILLIE ALLEN GARRETT,
Appellant,

Vs,

THE STATE OF FLORIDA,
Appellee.

Counsel for appellee having filed in this cause
motion for rehearing, and same having been considered
by the court which determined the cause, it is ordered
that said motion be and it is hereby denied.

A True Copy
ATTEST:
[Signature illegible]

Clerk District Court of
Appeal, Third District

App. 5

SUPREME COURT OF FLORIDA
FRIDAY, APRIL 10, 1981

CASE NO. 60,065
District Court of Appeal,
3d District — No. 78-1098
STATE OF FLORIDA,
Petitioner,
u
WILLIE ALLEN GARRETT,

Respondent.

This cause having heretofore been submitted to
the Court on jurisdictional briefs and portions of the
record deemed necessary to reflect jurisdiction under
Article V, Section 3(b), Florida Constitution (1980), and
the Court having determined that it should decline to
accept jurisdiction, it is ordered that the Petition for
Review is denied.

No Motion for Rehearing will be entertained by
the Court. See Fla. R. App. P. 9.330(d).

App. 6

BOYD, Acting C. J.. OVERTON, ENGLAND,
ALDERMAN and McDONALD, JJ., concur

A True Copy
TEST:

Sid J. White
Clerk Supreme Court.

by: [Signature illegible]
Deputy Clerk

App. 7

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA, THIRD DISTRICT

CASE NO. 78-1098

WILLIE ALLEN GARRETT,
Appellant,

vs.

THE STATE OF FLORIDA,
Appellee.

MOTION FOR REHEARING

Appellee hereby moves this court for rehearing in
the above cause and in support thereof states the
following:

CONSIDERATION OF THE ISSUE WHICH
FORMED THE BASIS FOR THIS COURT'S
OPINION WAS IMPROPER.

(1) This court found that reversal should result
due to the failure of the trial court to hold a hearing as
to the likelihood of Appellant's eventual ability to stand
trial and the fact that it is apparent from the record
that had such a hearing been held, the trial court would
have necessarily found Appellant permanently
incompetent. Slip opinion at 3.

(2) The question of whether these factors require
reversal, however, was not raised as an issue in this

App. 8

case. It was not briefed by either party or even asserted
by Appellant. Rather, the issue here was phrased strictly
in speedy trial terms, both rule and constitutional.
(Appellant's brief, p. i). Indeed, Appellant could not
have raised the issue in any other way, as this appeal
arose pursuant to a plea of nolo contendere. Under
such circumstances, only the claim or claims specifically
reserved may be considered on appeal.

(3) Appellee therefore submits that the issue upon
which this court decided this case is not a proper matter
to be considered in this proceeding and that rehearing
should be granted and the case dealt with strictly on
the the speedy trial claims.

THE REQUIREMENTS OF JACKSON V.
INDIANA, 406 U.S. 715 (1972) DO NOT
MANDATE THE CONCLUSION REACHED
BY THIS COURT.

(4) Even if the issue determined by this court is
held to be a proper subject to consider, rehearing should
nonetheless be granted as this court's conclusion that
Appellant has to be discharged or that civil committment
proceedings have to be commenced is based upon a
misinterpretation of the dictates of Jackson v. Indiana,
406 U.S. 715 (1972), the case upon which this court
primarily relied.

(5) The opinion in Jackson in no way requires

discharge from criminal liability of a defendant who is
incompetent to stand trial. Indeed, the Court specifically

App. 9

declined to hold in such a manner. 406 U.S. at 739. The
court noted that dismissal of charges against an
incompetent might be justified in a given case on a
speedy trial or due process analysis, but to hold, as this
court has, that Jackson requires discharge merely because
a defendant is incompetent and not substantially likely
to regain competence in the foreseeable future is clearly
a misinterpretation of the opinion.

(6) This fact is made apparent not just by the
language of Jackson, but also by the opinion in United
States u Lancaster, 408 F.Supp. 225 (D.C. Cir. 1976), in
which the government was required pursuant to Jackson
to either release or civilly commit an incompetent
defendant. Following an unsuccessful attempt to commit,
the defendant was released to the custody of his aunt.
Despite numerous continued findings of incompetency
and unlikelihood that the defendant would become
competent, the trial court analyzed the question under
a speedy trial analysis and found that since, under the
facts of that case, no speedy trial violation had occurred,
dismissal was unwarranted. A similar conclusion was
reached in Commonwealth v. Kerrigan, 413 A.2d 729
(Penn. 1979). See also In re Harmon, 425 F.2d 916 (Ist
Cir. 1970) (if incompetent defendant is committed to
custody of Attorney General under federal law, court
should require frequent reports on accused's mental
condition, demonstrating the eourt's intention that the
charges would remain pending); United States ex rel.
von Wolfersdorf v. Johnston, 317 F.Supp. 66 (S.D.N.Y.
1970) (state defendant confined for nearly 20 years as
incompetent in hospital for criminally insane entitled
to civil committment, but question of whether he could
be tried should he regain competence was speedy trial

App. 10

question). Cf. State u Lee, 602 P.2d 944 (Hawaii 1979)
(motion for judgment of acquittal on basis of incompetence
at time of trial should be deferred and case suspended
until defendant can assist counsel; potential prejudice
neutralized by court’s authority under Hawaii law to
dismiss when sufficient time has passed that it would
be unjust to resume proceedings, an analysis very similar
to a constitutional speedy trial analysis.

(7) Also instructive is the United States Supreme
Court's opinion in Drope u Missouri, 420 U.S. 162 (1975).
In that case, the Court found that the state trial court
erred in not holding a hearing at the time of trial as to
the defendant’s competence, but noted specifically that
the State was free to retry the defendant if found to be
competent. 420 U.S. at 183. See also Lokes v. Capps,
625 F.2d 1258, 1268, n.5 (5th Cir. 1980), viewing in issue
in terms of speedy trial analysis.

(8) The reasoning of this line of cases is applicable
here. The framework within which the issue presented
should be considered is strictly a speedy trial one. The
requirement of Jackson that upon a finding of
incompetence, a defendant be committed or released
means just that and no more, released, free to walk the
streets, but certainly not discharged from criminal liability
merely because of his incompetence. It must be
remembered that the holding in Jackson was addressed
to the primary question presented by that case, whether
the defendant was entitled to release from confinement
since he had neither been convicted nor committed. In
no way did it hold that the criminal charges cannot
proceed when, as here, the defendant reaches a state of
competence. Thus, Jackson does not stand for the

App. 11

proposition that discharge is warranted and this court
should reconsider its opinion accordingly.

III

THE FACT THAT THE TRIAL COURT DID
NOT MAKE A DETERMINATION OF THE
LIKELIHOOD OF APPELLANT BECOMING
COMPETENT TO STAND TRIAL DOES NOT
SUPPORT THE RESULT REACHED BY THIS
COURT.

(9) As noted in the discussion under part II of
this motion, a defendant who is incompetent and unlikely
to become so in the foreseeable futute is not entitled to
discharge from criminal liability, but only to release or
committment. Thus, had the trial court held the hearing
contemplated by Jackson, regardless of what action it
took within the dictates of Jackson, the fact would
remain that Appellant, upon regaining competency,
would still have been subject to prosecution, assuming
that dismissal would not have been required under a
speedy trial analysis. Thus, any remedy Appellant might
have as regards the failure to properly hold a hearing
should not relate to the charges against him, as any
error as to this matter would not have affected those
charges, and surely should not compel reversal. See
Florida Statutes §924.33. Rather, whatever remedy
Appellant might have would be by way of a civil suit
for damages. See O Connor u Donaldson, 422 U.S. 563
(1975).

(10) Even if discharge would have been appropriate
upon a finding of incompetency, it cannot be concluded

App. 12

that that would have been the action the trial court
would have taken had it conducted a hearing under
Jackson. This is so for a number of reasons. (A) In the
first place, no emphasis was placed in the psychological
evaluations on the likelihood of Appellant returning to
competence. Had this matter been at issue, the question
would have been dealt with in detail and the trial
court’s decision would have undoubtedly taken this
factor into account. There is no way of knowing what
conclusions would have been reached in this regard. (B)
Further, there can be no doubt that at the time Appellant
was evaluated, the question of whether a defendant
could be considered competent while on psychotropic
medication was one which was open to question. Although
the trial court did, as this court noted, believe that a
defendant could not be competent in such a situation, it
is quite possible that if the court was faced with the
alternative of either trying or releasing the defendant,
it might have chosen to try him, recognizing that the
position that the defendant was competent was clearly
at least arguable, thereby allowing the matter to be
determined by an appellate court. (C) In addition, the
matter might have been determined by an appellate
court contrary to the trial court’s belief in a proceeding
instituted by the state, be it appeal or extraordinary
writ. In fact, in at least two cases in other jurisdictions,
courts have in the body of orders dealing with similar
issues, stayed the effect of the order to allow for a
government appeal. United States v. Pardue, 354 F.Supp.
1377 O. Conn. 1973); United States u Jackson, 306 F.Supp. 4
(N.D. Cal. 1969). (D) It should also be considered that
the mere expressions of initial opinion expressed by
the court would not necessarily have been the final
result reached by the court had it dealt squarely with

App. 13

the issue in the context of a hearing, having at that
time the benefit of argument by counsel to the precise
point and of the court’s own research.

(11) Even if it is held that the trial court, had it
held a hearing, would have discharged Appellant from
criminal liability and that such discharge would not
have been disturbed by an appellate court, the action
taken by this court would still be inappropriate. This is
so because the trial court in reaching such a conclusion
would have been wrong, since, as has become apparent
subsequent to the time at which a hearing would have
been held, Appellant was in fact competent at the time.
As both parties have noted in their briefs, and as this
court implicitly noted in its opinion by pointing out
that the trial court’s belief was not untenable until
1977, a person who is competent only on psychotropic
medication can properly be tried. Thus, Appellant was
in fact competent to have stood trial at the time a
hearing under Jackson would have been held. This
court’s conclusion can therefore only be sustained on a
theory that because the trial court would have acted
erroneously if it had acted at all, the proper remedy is
to remand with directions that the erroneous action
occur. Such an approach is clearly inappropriate. The
law that applies on appeal is that in effect at the time
an appeal is decided, even when there has been a
change of law since the time of the trial. Wheeler v.
State, 344 So.2d 244 (Fla. 1977); Evans v. St. Regis
Paper Co., 287 So.2d 296 (Fla. 1973); Williams u Wainwright,
325 So.2d 485 (Fla. 4th DCA 1975); Cosby v. State, 297
So.2d 617 (Fla. Ist DCA 1974). In reaching its conclusion
here, this court is applying not the law at the time of
the appeal, not even the law at the time of the trial, but

App. 14

the trial judge’s apparent misconception of the law at
that time. Appellee submits that such an approach is
wholly unwarranted. Moreover, since, as has been
previously pointed out, the result that would have
been reached had the trial court held a hearing, would
have, at best for Appellant, been the same as was
actually reached, that is, he would not have been tried
until it became clear‘ that a person on psychotropic
medication could properly be held competent, any error
in not holding a hearing cannot be considered grounds
for reversal as it in no way would have injuriously
affected Appellant’s substantive rights. Florida Statutes
§924.33.

IV

CONSIDERING THIS CASE WITHIN A
SPEEDY TRIAL FRAMEWORK, REVERSAL
SHOULD NOT RESULT.

(12) As noted in part I of this motion, the only
issue reversed and presented to this court was the
question of whether Appellant was denied a speedy
trial. As discussed throughout this motion, the real
question to be determined in considering the propriety
of trying a defendant who has previously been held
incompetent is a speedy trial question. Thus, this court’s
attention should focus on that issue in determining
whether reversal is appropriate in the present case.

App. 15

(13) As to this issue, it should be noted that
Appellant has presented claims that both his constitutional
and rule speedy trial rights were violated. As regards
each of these claims, Appellee relies upon the argument
set forth in its brief. Appellee notes additionally, however,
the existence of a case, decided subsequent to the filing
of briefs and to argument in this cause, which compels
the conclusion that Appellant’s claims must be rejected
as regards the claimed constitutional violation. In Sliger
v. State, 382 So.2d 373 (Fla. 5th DCA 1980), the court
held that a claim of a constitutional speedy trial violation
may not be reversed for review on a plea of nolo
contendere, in that proceeding in such a manner deprives
the court of a chance to assess the prejudice to the
defendant, a key factor in reviewing such claims. Indeed,
a defendant might well, in a given case, be able to
present as able a defense many years after the fact as
he might have at the time the charges are filed, or at
least be able to present a sufficient defense that he
might be acquitted. When no trial is held, however, it is
impossible to assess these factors. The reasoning of
Sliger is equally applicable here and should preclude
review of Appellant’s constitutional claim. This case
should therefore be considered only as a rule speedy
trial case and should be, for the reasons set forth in
Appellee’s brief, affirmed.

App. 16

WHEREFORE, Appellee respectfully requests that
this court grant rehearing in the above cause and affirm
the judgment of the trial court.

Respectfully submitted,

JIM SMITH
Attorney General

A.
ANTHONY C. MUSTO
Assistant Attorney General

App. 17

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy
of the instant Petition for a Writ of Certiorari was
mailed by depositing same for mailing at a United
States post office with first-class postage pre-paid to
counsel for Respondent Garrett, Terry L. DeMeo, DeMeo
and Sherman, P.A., ACLU Foundation of Florida, Inc.,
3081 Salzedo Street, Coral Gables 33134, and Bruce J.
Winick, ACLU Foundation of Florida, Inc., University
of Miami School of Law, P.O. Box 248087, Coral Gables,
Florida 33124, and Louis R. Beller, ACLU Foundation
of Florida, Inc., 420 Lincoln Road, Suite 238, Miami
Beach, Florida 33139, on this the 9th day of July, 1981.

/s/

ARTHUR JOEL BERGER
Assistant State Attorney

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2495%3A1. Public record. Not legal advice.