5D05-905 DCF v. Clem

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-905

Case Date: 06/06/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. ROBERT CLEM, Respondent. ________________________________/ Opinion filed June 10, 2005 Petition for Certiorari Review of Order from the Circuit Court for Marion County, Hale R. Stancil, Judge. Ralph J. McMurphy, Department of Children and Families, Wildwood, for Petitioner. No Appearance for Respondent. Case No. 5D05-905

ORFINGER, J. The Florida Department of Children and Families (DCF) seeks certiorari review of the trial court's amended order determining that Robert Clem is incompetent to stand trial and committing him to DCF's custody. Though not a party below, DCF has

standing to seek certiorari review of the trial court's order. See Dep't of Children & Families v. Harter, 861 So. 2d 1274 (Fla. 5th DCA 2003). For the reasons expressed below, we deny the petition. Clem was charged with burglary of a dwelling and grand theft. Pursuant to

Florida Rule of Criminal Procedure 3.210, his counsel filed a motion, questioning Clem's

competency to stand trial. The trial court appointed three experts to evaluate Clem. While all of the experts agreed Clem suffers from serious mental disorders, only one, Dr. David Bortnick, concluded Clem was incompetent to proceed. Dr. Bortnick opined that Clem's appreciation of the charges against him is "questionable," that he does not appreciate the nature of possible penalties against him, that he does not understand the adversary nature of the legal process, that his capacity to disclose relevant facts is questionable, and that he lacks the ability to testify relevantly, in that he "doesn't know what he would say--the Court is a scary, spooky place." Dr. Bortnick concluded: Robert Clem is incompetent to proceed at trial and was probably insane at the time of the alleged offenses. He is mentally retarded, cognitively impaired, suffers from a severe mental disorder, was not taking his medication at the time of the alleged offenses and may have been under the influence of auditory hallucinations. He was "drunk and high[,]" which probably exacerbated his intellectual and cognitive defects

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