
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Luis Angel RODRIGUEZ and State of Florida, Respondents.
    Case No. 5D18-3841
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    Joyce L. Miller, Assistant General Counsel, of Department of Children and Families, Tavares, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee, State of Florida.
    No Appearance for Other Respondent.
   PER CURIAM.

The Department of Children and Families ("the Department") petitions this Court for certiorari review, challenging the trial court's order involuntarily committing Luis Angel Rodriguez to its care. We grant the petition.

Before Rodriguez could be brought to trial on multiple criminal offenses, a question arose as to his competency to proceed. The trial court properly ordered an evaluation pursuant to section 916.12, Florida Statutes (2018), and Florida Rule of Criminal Procedure 3.210(b). A psychologist evaluated Rodriguez and concluded that he was intellectually disabled and not competent to proceed to trial. While the evaluating psychologist recommended that Rodriguez participate in certain treatment, she specifically opined that Rodriguez was "not likely restorable to competency." After receiving the evaluating psychologist's report, the trial court rendered an order adjudicating Rodriguez incompetent to proceed to trial and committing him to the Department's care pursuant to section 916.13(1), Florida Statutes (2018).

The trial court erred in involuntarily committing Rodriguez under section 916.13(1) because requirements for such a commitment include the existence of "a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future." § 916.13(1)(c), Fla. Stat. (2018) (emphasis added). Because the evaluating psychologist opined that Rodriguez was not likely restorable to competency, he could not be committed under section 916.13(1). See Dep't of Child. & Fams. v. Gilliland , 947 So.2d 1262, 1262-63 (Fla. 5th DCA 2007) (citing Oren v. Judd , 940 So.2d 1271, 1274 (Fla. 2d DCA 2006) ) (quashing order of continued commitment under section 916.13(1)(c) where uncontradicted testimony established little or no probability respondent would become competent in future).

We grant the Department's petition for writ of certiorari, quash the order of involuntary commitment below, and remand for further proceedings.

PETITION FOR CERTIORARI GRANTED; ORDER QUASHED; and REMANDED.

COHEN, BERGER, and SASSO, JJ., concur.  