Competency cases are usually decided by what happens in the first 45 days after the issue is raised, long before anyone talks about a plea or a trial. I learned that leading the Hillsborough County Public Defender’s Office as its former Chief Operations Officer, where I oversaw a staff of over 100 attorneys whose clients included many people with serious mental illness. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and when a family tells us a loved one is hearing voices or cannot follow what is happening in court, our attorneys move for a competency evaluation and keep building the defense while treatment runs.

What does competency to proceed mean in Florida?

Competency to proceed means the defendant can understand the case and work with the defense lawyer right now. It is about present mental state, not the defendant’s condition on the day of the alleged crime. Florida’s definition in section 916.12(1), Florida Statutes, tracks the test the U.S. Supreme Court set in Dusky v. United States, 362 U.S. 402 (1960), where the Court held it is not enough that a defendant is “oriented to time and place” and has “some recollection of events.” The question is whether the defendant has a rational as well as factual understanding of the proceedings and can consult with counsel.

Prosecuting someone who cannot understand the case violates due process. That is why a competency question can come up at any material stage, from first appearance through sentencing, and why our Tampa criminal mental health lawyer team screens for it at the first client meeting.

How is competency to proceed different from the insanity defense?

Competency looks at the defendant’s mind today, while insanity looks at the defendant’s mind at the time of the offense. A finding of incompetence pauses the case; a successful insanity defense ends it with a verdict of not guilty by reason of insanity. Under section 775.027, Florida Statutes, the defendant must prove insanity by clear and convincing evidence.

How does a Florida court decide whether a defendant is competent?

The court appoints experts, holds a hearing, and makes its own finding. Under Florida Rule of Criminal Procedure 3.210, as amended effective January 1, 2025, the judge, the State, or the defense can raise the issue when there are reasonable grounds to believe the defendant is not competent. The court may order an evaluation by no more than three experts, must hold a status hearing within 20 days of the motion, and absent good cause must hold a final hearing within 45 days.

Each expert must report on the six abilities listed in section 916.12(3):

1. Appreciate the charges or allegations.
2. Appreciate the range and nature of possible penalties.
3. Understand the adversarial nature of the legal process.
4. Disclose to counsel facts pertinent to the case.
5. Manifest appropriate courtroom behavior.
6. Testify relevantly.

The judge, not the experts, decides. In Dougherty v. State, 149 So. 3d 672 (Fla. 2014), Bernard Dougherty had been declared incompetent and committed to DCF before his case later went to a jury trial. Although his own claim was procedurally barred, the Florida Supreme Court used the case to set the rule: a judge may decide competency on written reports when the parties agree, but the parties cannot stipulate to the ultimate issue, and the court must make an independent determination and enter a written order before the case proceeds. When a proper hearing never happened, the usual remedy is a new trial.

How many Florida defendants are found incompetent to proceed?

More than most families expect. Florida’s Department of Children and Families reported that 1,417 people were committed to a competency restoration program during FY 2024-25, and that 2,675 patients at state mental health treatment facilities that year had been adjudicated incompetent, according to the Florida Senate Criminal Justice Committee’s 2026 analysis of CS/SB 1326. The same DCF data, reported to the committee in February 2026, showed that a defendant committed for restoration waits an average of 115 days to be admitted to a facility.

Research shows how often the question is real. A meta-analysis by Gianni Pirelli, William Gottdiener, and Patricia Zapf, A Meta-Analytic Review of Competency to Stand Trial Research, 17 Psychology, Public Policy, and Law 1 (2011), found that 27.5% of defendants referred for a competency evaluation were found incompetent, and that defendants with a psychotic disorder were nearly eight times more likely to be found incompetent than defendants without one.

What happens after a defendant is found incompetent?

The judge orders treatment to restore competency, and the setting depends on the charge and the defendant’s needs. A felony defendant can be involuntarily committed to the Department of Children and Families only if the court finds by clear and convincing evidence, under section 916.13, Florida Statutes, that the defendant’s mental illness makes them unable to survive alone or likely to cause serious harm, that every less restrictive treatment alternative is inappropriate, and that there is a substantial probability the defendant will regain competency in the reasonably foreseeable future.

That last requirement is enforced strictly in our district. In Department of Children & Families v. Musa, 321 So. 3d 908 (Fla. 2d DCA 2021), a Pasco County judge committed a man charged with falsely impersonating an officer, even though none of the three clinicians who evaluated him found he could be restored. The Second District quashed the commitment, holding that a finding that a defendant “might” be restored does not meet the clear and convincing standard of a “substantial probability.”

Many defendants never need a hospital. Under section 916.17, Florida Statutes, the court may order conditional release in lieu of commitment based on an approved outpatient treatment plan that provides for residential care or supervision and outpatient mental health services. The defense can submit that plan. In our experience in Hillsborough County, a well-prepared plan with a local provider and the court’s mental health liaisons often keeps a client out of both the jail and the state hospital.

Do the charges get dropped if the defendant never becomes competent?

Eventually, in many cases, but not quickly and not always. Under section 916.145, Florida Statutes, charges against a defendant who remains incompetent due to mental illness for 5 continuous, uninterrupted years must be dismissed, unless the court finds the defendant will become competent in the foreseeable future and sets a time frame.

The court may also dismiss charges after at least 3 years of incompetence, but not for a long list of serious offenses, including sexual battery, robbery, murder, aggravated battery, armed burglary, any forcible felony, and any offense requiring possession or use of a firearm, or when an identifiable victim has not consented. Any dismissal is without prejudice, so the State may refile if the defendant is later found competent.

Does the defense stop working while a client is incompetent?

No. Rule 3.210(a)(2) says a defendant’s incompetence “does not preclude such judicial action, hearings on motions of the parties, discovery proceedings, or other procedures that do not require the personal participation of the defendant.” Our attorneys use that time to take depositions, file motions to suppress, gather treatment records, and prepare mitigation, so the defense is ready the day competency is restored. That work often feeds directly into a mitigation report or a request for a mental health diversion program under the Tristin Murphy Act.

The Legislature considered changing these rules in 2026. CS/SB 1326 would have required experts to address malingering and lengthened the dismissal timelines for serious charges, but the bill died in committee on March 13, 2026, so the current statutes remain in effect.

When should a family raise a competency concern?

As soon as the family sees signs that the person cannot follow the case, ideally before the first court date. Hearing voices, refusing medication, being unable to explain the charge, or talking about the case in ways that make no sense are all reasons to call a lawyer right away. A competency motion made early can move a loved one from the jail toward treatment, and the deadlines in Rule 3.210 only start running once the motion is filed. If the person has not been charged yet, our page on representation before charges are filed explains how we work with prosecutors at that stage.

Frequently asked questions

Who can request a competency evaluation in a Florida criminal case?

The defense lawyer, the prosecutor, or the judge can raise competency at any material stage of the case under Rule 3.210(b). Our attorneys at The Brancato Law Firm file the motion with the specific observations the rule requires, so the court has a clear basis to order an evaluation.

How long does competency restoration take in Florida?

It varies with the person and the illness, and the law requires the facility to report to the court within 60 days after admission under section 916.13. The Brancato Law Firm tracks those reports and pushes for a hearing as soon as a client is reported competent or no longer meets commitment criteria, because the defendant must be returned to court within 7 days and a hearing held within 30 days of that notice.

Can a person found incompetent be held in the Hillsborough County jail while waiting for a hospital bed?

Yes, a defendant committed to DCF often waits in jail until a bed opens, and DCF data reported to the Florida Senate in 2026 put the average wait at 115 days. The Brancato Law Firm asks the court to consider conditional release to community treatment whenever a safe outpatient plan exists, so a client is not left waiting in a cell.

Can someone be found competent while still mentally ill?

Yes. Competency asks only whether the person can understand the case and assist counsel, so a person with a serious diagnosis can be competent, especially once stable on medication. The Brancato Law Firm still presents the illness as mitigation even when the client is competent, because the diagnosis can support a downward departure or diversion.

Is competency to proceed the same as being Baker Acted?

No. The Baker Act is a civil process for involuntary mental health examination under chapter 394, while competency to proceed is a question inside a criminal case under chapter 916. Our attorneys at The Brancato Law Firm coordinate both when a client’s crisis led to an arrest, and our post on the Tristin Murphy Act covers mental health diversion options.

What happens if competency was never properly decided before a trial or plea?

The conviction can be challenged on direct appeal, and under Dougherty v. State the remedy is either a retrospective competency hearing, if one can be meaningfully held, or a new trial. The Brancato Law Firm insists on a written competency order before any client who was found incompetent enters a plea or goes to trial.

Get help for your loved one now

If a family member was arrested and cannot understand what is happening, the competency motion is the first step, and every day in jail without treatment makes the illness and the case harder. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Our attorneys will review the arrest, talk with the family about the person’s history, and decide with you whether to raise competency now. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges.

For more about our defense strategies, visit our Criminal Mental Health page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Jimmy Ryce jury is not asked whether you committed a crime. It is asked to predict whether you will commit one, and that question turns almost entirely on expert opinions that can be tested. In the Major Crimes Unit, I handled homicide, sex crime, and child abuse cases, and as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have spent more than 25 years in Hillsborough County courtrooms cross-examining the kinds of experts the State relies on in these cases. Our attorneys defend Ryce cases by attacking the diagnosis, the risk prediction, and the process that produced them.

What Is the Jimmy Ryce Act in Florida?

The Jimmy Ryce Act is Florida’s sexually violent predator law. It allows civil commitment to a secure Department of Children and Families facility after a prison sentence ends. Under section 394.912, Florida Statutes, a “sexually violent predator” is a person who has been convicted of a sexually violent offense and “suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.”

People committed under the Act are held at the Florida Civil Commitment Center in Arcadia, in DeSoto County. Under section 394.917, Florida Statutes, commitment continues “until such time as the person’s mental abnormality or personality disorder has so changed that it is safe for the person to be at large.” There is no maximum term.

Florida’s Office of Economic and Demographic Research tracks every commitment. Its Sexually Violent Predator Program commitments table counts 1,197 commitments from February 1999 through July 2026, including 29 commitments during calendar year 2025.

What Must the State Prove to Commit Someone?

The State must prove two elements by clear and convincing evidence, and a jury verdict must be unanimous. The definitions in section 394.912 set the bar:

The U.S. Supreme Court added a constitutional limit. In Kansas v. Crane, 534 U.S. 407 (2002), the Court reviewed Kansas’s version of the law and held that “there must be proof of serious difficulty in controlling behavior,” enough to distinguish the person from “the dangerous but typical recidivist convicted in an ordinary criminal case.” That lack-of-control requirement is often where a Ryce defense is won.

Is the Jimmy Ryce Act Constitutional?

Yes. The Florida Supreme Court upheld the Act in Westerheide v. State, 831 So. 2d 93 (Fla. 2002), the appeal of a man committed after convictions for lewd and lascivious assault on a child. The court held that Ryce commitment is civil, not criminal, so it does not violate double jeopardy or ex post facto protections, and it rejected due process and equal protection challenges.

The court’s reasoning shapes every trial. Westerheide held that commitment is based on “an individual’s current mental state that makes it likely the person will engage in acts of sexual violence,” not on punishment for the past offense. That is why our attorneys focus the jury on who the person is now, after years in prison and treatment, and not on the crime he already served time for.

How Does a Jimmy Ryce Case Begin?

It begins inside prison, long before the release date. Under section 394.913, Florida Statutes, the Department of Corrections must notify the multidisciplinary team and the state attorney at least 545 days before the anticipated release of a person serving a sentence for a qualifying offense. The process then moves through set stages:

Once a judge finds probable cause, section 394.915, Florida Statutes, requires the person to be held in a secure facility “without opportunity for pretrial release.” That makes the evaluation stage, before any petition is filed, the most important time to have a lawyer involved.

What Rights Does a Person Have in a Jimmy Ryce Case?

A person facing commitment has rights borrowed from criminal cases. Under section 394.916, Florida Statutes, he is entitled to counsel at every adversarial proceeding, may retain his own experts with access to his records, and may demand a six-person jury in writing at least 5 days before trial. If no one demands a jury, the judge decides the case. An indigent respondent can ask the court to appoint a mental health expert at state expense.

At an adversarial probable cause hearing, if the court holds one, the person can present evidence, cross-examine the State’s witnesses, and see every report in the court file. These rights matter only if they are used. Our attorneys hire independent evaluators, demand the State’s records early, and decide with the client whether a jury or the judge is the better fact-finder for his case.

How Do Defense Attorneys Fight Jimmy Ryce Commitment?

They fight the prediction. Ryce cases are expert cases, and the defense wins by showing the State’s experts cannot carry a clear and convincing burden. Research on risk prediction supports that approach. A Public Safety Canada review of 100 studies led by researcher R. Karl Hanson, The Accuracy of Risk Prediction for Sexual Offenders (2007), found that unstructured professional judgment was the least accurate way to predict sexual reoffending, and structured actuarial tools were more accurate.

Base rates matter too. The Bureau of Justice Statistics report Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14), published in 2019, found that 7.7% of sex offenders released in 30 states in 2005 were arrested for rape or sexual assault within nine years. A jury told only about the old offense hears none of that context unless the defense presents it.

Our attorneys build the defense in five parts:

1. Start before the petition. We engage during the multidisciplinary team evaluation, gather treatment and prison records, and present information that may keep the team from recommending a petition.
2. Retain an independent expert. Section 394.916 gives the person the right to his own examiner with access to the records.
3. Challenge the diagnosis. We test whether the “mental abnormality” is a real, current condition or a label built from the old offense.
4. Challenge the risk prediction. We cross-examine on the tools used, how they were scored, and whether the expert overrode them with unstructured judgment.
5. Prove lack of control is missing. Under Kansas v. Crane, the State must show serious difficulty controlling behavior, and we show the jury the evidence that the person has it under control.

Our Tampa criminal mental health lawyer page explains how we work with forensic psychologists and psychiatrists, and our post on Florida sex offender registration covers the registration duties that follow release.

Can a Person Be Released After Jimmy Ryce Commitment?

Yes. Under section 394.918, Florida Statutes, every committed person must have a mental condition examination at least once a year, and DCF must give him annual written notice of his right to petition for release. The court holds a limited hearing on whether there is probable cause to believe his condition “has so changed that it is safe for the person to be at large.”

If the court finds probable cause, it sets a release trial before the judge. At that trial, the State again bears the burden of proving by clear and convincing evidence that the person’s mental condition “remains such that it is not safe for the person to be at large.” Release petitions are expert cases too, and our attorneys prepare them with an independent evaluation rather than relying on the facility’s annual report.

How Soon Should You Hire a Lawyer for a Jimmy Ryce Case?

Hire one as soon as a release date is within two years and the conviction could qualify. The 545-day notice period means the evaluation may already be underway, and once a petition is filed and probable cause is found, there is no release before trial. For a person still facing the underlying charge, the time to think about Ryce exposure is during plea negotiations, because the offense of conviction decides whether the Act can apply. Our Tampa sex crimes lawyer team weighs that risk in every sex offense case we handle.

Frequently Asked Questions

How long can someone be held under the Jimmy Ryce Act?

There is no fixed limit: commitment lasts until a court finds, at an annual review or a release trial under section 394.918, that the person’s condition has so changed that release is safe. The Brancato Law Firm prepares release petitions with independent experts so the State must prove continued confinement each time.

Who decides whether a person is a sexually violent predator?

A judge decides unless either side demands a six-person jury in writing at least 5 days before trial, and a jury verdict for commitment must be unanimous under section 394.917. Our attorneys at The Brancato Law Firm weigh with each client whether a jury or the judge is the better choice for his facts, as explained on our Tampa sex crimes attorney page.

What crimes can lead to a Jimmy Ryce petition?

Qualifying offenses include sexual battery, lewd or lascivious offenses involving a child, kidnapping or false imprisonment of a child under 13 with a sexual offense, attempts or conspiracies to commit them, comparable federal and out-of-state felonies, and other crimes found to be sexually motivated. The Brancato Law Firm checks whether a prior conviction actually qualifies under section 394.912, because a petition built on a non-qualifying offense fails at the first element.

Can a Jimmy Ryce petition be dropped or dismissed in Florida?

Yes: the multidisciplinary team may decline to recommend a petition, the state attorney may decide not to file, and a petition fails at trial when the State cannot prove both elements by clear and convincing evidence. The Brancato Law Firm works to stop the case at the evaluation stage, before a petition is ever filed.

Does a person get his own expert in a Jimmy Ryce case?

Yes: section 394.916 lets the person retain experts who must be given reasonable access to him and his records, and an indigent person can ask the court to appoint one at state expense. Our team at The Brancato Law Firm works with forensic psychologists who evaluate the person and testify about the limits of the State’s risk predictions, as covered in our post on expert witnesses in criminal defense.

Is a Jimmy Ryce case criminal or civil?

It is civil, because the Florida Supreme Court held in Westerheide that commitment is based on current mental condition and is not punishment. The Brancato Law Firm still treats it like a major criminal trial, because the stakes are confinement with no end date.

Talk to a Tampa Defense Attorney About a Jimmy Ryce Case

The 545-day notice clock may already be running for someone you love in a Florida prison. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will review the conviction, the records, and the evaluation stage to find where the State’s case can be stopped. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients.

For more about our defense strategies, visit our Tampa Sex Crimes Lawyer page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.