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.

In a mental health diversion request, the prosecutor wants two things answered before saying yes: is there a real diagnosis, and is there a treatment plan that will keep the community safe. I have answered those questions for clients for more than 25 years in Hillsborough County courtrooms, including as a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys and saw how many cases began with an untreated illness. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. Our attorneys build the evaluation, the treatment plan, and the written request that diversion requires.

What Is the Tristin Murphy Act?

The Tristin Murphy Act is a 2025 Florida law that creates model pretrial diversion programs for people with mental illness charged with misdemeanors or lower-level felonies. Governor DeSantis signed SB 168 in Tampa on June 25, 2025, and it became chapter 2025-180, Laws of Florida, effective October 1, 2025. The law is named for Tristin Murphy, a 37-year-old father diagnosed with schizophrenia who was serving a prison term for littering more than 500 pounds after driving his truck into a retention pond. He died by suicide on September 16, 2021, while on a work assignment at a state prison, according to the Florida Senate staff analysis of SB 168.

Who Qualifies for Felony Mental Health Diversion in Florida?

A defendant charged with a second- or third-degree felony may qualify for diversion under section 916.136, Florida Statutes, if he or she meets four criteria:

1. Has a mental illness.
2. Has no more than three prior felony convictions in the past five years.
3. Is not charged with a violent felony.
4. Does not have a significant history of violence.

Meeting the criteria does not guarantee entry. The statute gives the state attorney “the sole discretion to determine a defendant’s eligibility,” and it also lets the state attorney waive the criteria “in extenuating circumstances” when doing so “is in the interest of justice.” First-degree felonies are not covered. To participate, the defendant signs a consent form agreeing to treatment, to release of the records needed to prove compliance, and to waive the right to a speedy trial.

Florida courts treat a prosecutor’s diversion decision as off-limits to judges. In Cleveland v. State, 417 So. 2d 653 (Fla. 1982), a woman charged with felony welfare fraud met every statutory requirement for pretrial intervention, but the state attorney refused to consent; the trial judge ordered her admitted anyway. The Florida Supreme Court held that “the pretrial diversion decision of the state attorney is prosecutorial in nature and, thus, is not subject to judicial review.” Under section 916.136, that means the persuasion has to happen with the prosecutor, which is why our attorneys present the evaluation and treatment plan before the State makes its decision.

How Does Misdemeanor Mental Health Diversion Work?

Under section 916.135, a person charged only with a misdemeanor or ordinance violation can be screened for mental illness within 24 hours of booking and then evaluated and assessed for treatment. The state attorney, the defense attorney, or the court may request screening “at any stage of the criminal proceedings.” If the person completes all treatment recommendations, “the state attorney must consider dismissal of the charges,” and if dismissal is not appropriate, may refer the case to mental health court. When a defendant falls short on treatment, the court may “exhaust therapeutic interventions” before considering a return to jail.

Both new sections describe a model process. Each community may adapt it to local resources, and the law encourages counties to apply for state reinvestment grants to fund programs. Whether a program operates in a given county, and how it runs, depends on the local state attorney, public defender, sheriff, court, and treatment providers.

Is Mental Health Court a Better Option Than the New Diversion Law?

Sometimes, because Florida’s older mental health court statute does not leave admission solely to the prosecutor. Under section 948.08(8), a defendant identified as having a mental illness and charged with a nonviolent felony is eligible for a pretrial mental health court program “upon motion of either party or the court’s own motion.” The State and the officer must consent only for resisting an officer with violence or battery on a law enforcement officer, and the State and the victim for aggravated assault. At the end of the program, “the court shall dismiss the charges upon a finding that the defendant has successfully completed” it.

The 13th Judicial Circuit lists an Adult Mental Health Treatment Court among its problem-solving courts in Hillsborough County. In our experience, the best route depends on the charge, the record, and the diagnosis, and our attorneys often present both options so the case lands in the program most likely to end in a dismissal. Our Tampa criminal mental health lawyer page explains how we handle these cases.

How Common Is Mental Illness Among People in Prison?

Common enough that diversion affects a large share of criminal cases. About 43 percent of state prisoners reported a history of a mental health problem in the 2016 Survey of Prison Inmates, according to a 2021 report by the U.S. Bureau of Justice Statistics, and about 14 percent reported serious psychological distress in the 30 days before the interview. In Florida, the Department of Corrections estimates that nearly 60 percent of incarcerated people have a substance use disorder and only about one-third of them receive services, as reported in the 2025 Senate staff analysis of SB 168.

Research supports treatment-based courts. A study published in the American Journal of Psychiatry, Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence (McNiel and Binder, 2007), compared 170 people who entered a San Francisco mental health court with 8,067 other adults with mental disorders booked into the county jail. Participation was associated with a longer time without any new criminal charges or new charges for violent crimes, and graduates kept those reductions after court supervision ended.

What Is the Forensic Hospital Diversion Pilot in Hillsborough County?

It is a community treatment alternative to a state forensic hospital, and the Tristin Murphy Act added Hillsborough County to it. Under section 916.185, the Department of Children and Families may run the pilot in Hillsborough County with the 13th Judicial Circuit, alongside Okaloosa, Duval, Broward, and Miami-Dade Counties, “if existing resources are available to do so on a recurring basis.” It is limited to adults charged with second- or third-degree felonies who have no significant history of violent offenses, who have been adjudicated incompetent to proceed or not guilty by reason of insanity, and who would otherwise be committed to a state facility.

The pilot is modeled on the Miami-Dade Forensic Alternative Center. The Eleventh Judicial Circuit reports that its participants are ready for discharge from forensic commitment an average of 52 days sooner, spend an average of 31 fewer days under commitment, and cost about 32 percent less than people served in state forensic facilities, according to the Senate staff analysis, which projected a Hillsborough pilot cost of about $1.5 million per year. For how competency is decided in the first place, see our post on competency to proceed.

How Do You Get Into Mental Health Diversion in Florida?

You get in by documenting the illness, building a treatment plan, and asking early. These are the steps our attorneys take:

1. Get a qualified evaluation. A psychiatrist or psychologist confirms the diagnosis and links it to the conduct charged. Jail screening under the new law is a start, but a full evaluation carries more weight.
2. Collect the treatment history. Prior hospitalizations, Baker Act records, prescriptions, and provider letters show the illness predates the arrest.
3. Line up a provider. A local treatment center ready to assess and treat the client answers the prosecutor’s safety question.
4. Choose the program. We compare section 916.136 diversion, mental health court under section 948.08(8), and ordinary pretrial intervention for the specific charge and record.
5. Make the written request. We present the evaluation and plan to the State Attorney’s Office, or file the motion for mental health court, before plea negotiations harden.
6. Track compliance. Completion records are what turn treatment into a dismissal.

When diversion is refused, the same work still matters. A documented mental illness can support a downward departure at sentencing, and our mitigation report and autism downward departure posts explain how. For how felony cases move through the courthouse, see our Hillsborough County criminal defense attorney page.

Frequently Asked Questions About Florida Mental Health Diversion

Does the Tristin Murphy Act apply to violent felonies?

No, felony diversion under section 916.136 excludes anyone charged with a violent felony or with a significant history of violence, though the state attorney may waive the criteria in extenuating circumstances. The Brancato Law Firm looks at whether mental health court under section 948.08(8), which allows some listed charges with consent, is a better fit.

Can a judge order me into mental health diversion if the prosecutor says no?

Not under section 916.136, because the state attorney has sole discretion and Cleveland v. State holds that diversion decisions are not subject to judicial review. Our attorneys at The Brancato Law Firm can ask the court for pretrial mental health court under section 948.08(8), which allows admission on motion of either party.

Will my charges be dismissed if I finish the program?

Under the Tristin Murphy Act, the state attorney must consider dismissal, but dismissal is not automatic. The Brancato Law Firm documents every completed treatment step so the request for dismissal is hard to refuse; see our criminal mental health defense page.

Do I give up my right to a speedy trial in mental health diversion?

Yes, the consent form under both new sections includes an agreement to waive the right to a speedy trial. Our attorneys at The Brancato Law Firm explain that trade-off before a client signs, because the case can return to the trial docket if the program is revoked.

Does autism or an intellectual disability qualify for felony diversion under the new law?

Section 916.136 uses the term “mental illness,” and the statute does not define autism or intellectual disability as covered. The Brancato Law Firm raises those conditions through other routes, including a downward departure and competency proceedings; see our autism downward departure guide.

Can a family member ask for mental health diversion for a loved one in jail?

A family member cannot file the request, but the state attorney, the defense attorney, or the court can request screening at any stage of a misdemeanor case under section 916.135. The Brancato Law Firm works with families to gather the treatment records that support a diversion request.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Talk to a Tampa Defense Attorney About Mental Health Diversion

Start before the first plea offer, because diversion is easiest to win before the State settles on a plan. 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 charge, the record, and the diagnosis to find the program that fits. 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 criminal defense clients in Tampa.

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