
    Harold William WARWICK, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1415.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Warwick appeals a conviction of manslaughter and the resulting sentence.

On October 14, 1976, Warwick was charged with first degree murder. On November 16, 1976, Warwick filed a notice of intent to rely on a defense of insanity. On February 23, 1977, Warwick was found incompetent to stand trial and was committed to the Division of Mental Health. On March 9, 1979, an administrative hearing officer found Warwick was still incompetent to stand trial, and that he had no substantial probability of becoming mentally competent to stand trial. This was based on the finding that Warwick suffered from organic brain syndrome due to drug abuse. On February 13, 1980, Warwick moved to dismiss the charges pursuant to Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) which motion was denied. On November 10, 1980, January 4, 1981 and July 7, 1981, Warwick was still found to be incompetent to stand trial. On October 31, 1981, the trial judge received a letter by the administrator of the facility stating that Warwick had mimicked the psychotic symptoms. On March 16, 1982, Warwick again moved to dismiss the charges, which motion was denied. On April 6, 1982, the trial court entered an order finding Warwick able to stand trial. On June 15, 1982, Warwick pled nolo contendere to a reduced charge of manslaughter specifically preserving the right to appeal the court’s denial of the motions to dismiss. Warwick was adjudicated guilty and sentenced to 15 years imprisonment. Warwick appeals. We affirm. The appellant was accorded a hearing at the expiration of 5 years in accordance with Rule 3.213(a) Florida Rules of Criminal Procedure adopted in 1980. He' was found to be competent. We find that the rule was applicable to the appellant even though it was promulgated after he was committed, particularly in view of the fact that it became effective before 5 years had expired from the original commitment. It is a rule of procedure and as such was applicable to all pending matters. Batch v. State, 405 So.2d 302 (Fla. 4th DCA 1981); Harris v. State, 400 So.2d 819 (Fla. 5th DCA 1981); Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979).

We find that the impact of the rule distinguishes this case from Garrett v. State, 390 So.2d 95 (Fla. 3d DCA 1980) rev. denied 399 So.2d 1146 (Fla. 1981) cert denied, 454 U.S. 1004, 102 S.Ct. 544, 70 L.Ed.2d 409, rehearing denied, 454 U.S. 1165, 102 S.Ct. 1041, 71 L.Ed.2d 322 (1981) and therefore affirm the trial judge’s action here under review.

Affirmed.

DANIEL S. PEARSON, Judge,

concurring.

The majority’s reliance on the fact that the defendant, in compliance with Florida Rule of Criminal Procedure 3.213, was accorded a competency hearing at the expiration of five years is simply not dispositive of the defendant’s constitutional claim that he was entitled to a dismissal of the charges against him, nor does it distinguish this case from Garrett v. State, 390 So.2d 95.

Rule 3.213 sets an outer limit for holding a person on a determination that he is incompetent to stand trial. If he is charged with a felony, is still incompetent after five years, and there is no substantial probability that he will become mentally competent to stand trial in the foreseeable future, then the rule mandates that the charges against the defendant be dismissed. But because the defendant is not entitled to relief under the rule either because he is found competent at the expiration of five years of incompetency, as here, or there is found to be a substantial probability that he will become mentally competent to stand trial in the foreseeable future, does not mean he is not entitled to relief under the Constitution. In other words, the rule does not do away with the holding in Garrett that a defendant who has “been held more than a ‘reasonable period’ without the requisite determination of the likelihood of his eventual ability to stand trial,” 390 So.2d at 97, cannot thereafter constitutionally be brought to trial. However, while I believe the defendant’s constitutional claim must be addressed, I do not believe he is entitled to the relief he seeks.

In my view, Garrett was wrongly decided. There simply was no constitutional infirmity in Garrett’s conviction, and there is none here.

In Garrett, this court reversed the conviction of a man who was brought to trial after being found competent to stand trial solely because he had been incarcerated for between six and seven years under earlier orders determining him to be incompetent. This court believed that such a result was compelled by Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). However, as Justice Rehnquist observed in dissenting from the United States Supreme Court’s decision to deny certiorari in Garrett, Florida v. Garrett, 454 U.S. 1004, 102 S.Ct. 544, 70 L.Ed.2d 409 (1981), this court’s decision in Garrett “is not supported, much less compelled, by Jackson v. Indiana,” 454 U.S. at 1006, 102 S.Ct. at 546, 70 L.Ed.2d at 410. As he explained:

“Jackson ... recognized limits on the power of a State indefinitely to eonfine an accused ‘solely on account of his incapacity to proceed to trial.’ As the Court was aware, however, that holding does not address the power of the State to try, and thus to convict, the accused once he has regained competency to face the charges against him_ It is foreseeable that once that time arrives the defendant may allege that he has been deprived of the right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments. The respondent in this case relied precisely, and exclusively, on such an argument in the District Court of Appeal_ That court, however, reversed his conviction ‘on the basis that, under the holding in Jackson v. Indiana, ... he should never have been brought to trial.’ 390 So.2d, at 96. Since Jackson did not address the power of the State to bring an accused to trial, it affords no basis for reversing respondent’s conviction.

454 U.S. at 1008, 102 S.Ct. at 546-47, 70 L.Ed.2d at 410-11 (emphasis in original). Thus, the remedy for a violation of the constitutional right not to be indefinitely incarcerated solely on a determination that one is incompetent to stand trial is not, as we held in Garrett, a dismissal of the criminal charges. Since, as I have said, Rule 3.213 does not do away with the holding in Garrett, the holding in Garrett should be done away with by us. 
      
      . Rule 3.213. Continuing Incompetency to Stand Trial: Disposition, (a) If at any time after five years after determining a person incompetent to stand trial when charged with a felony or one year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial, that there is no substantial probability that the defendant will become mentally competent to stand trial in the foreseeable future, and that the defendant does not meet the criteria for involuntary hospitalization set forth by law, or for involuntary admission to residential services as set forth by law, it shall dismiss the charges against the defendant.
     
      
      . If the defendant meets the criteria for involuntary hospitalization, then under Section (b) of the rule, the court is to commit the defendant for appropriate treatment.
     
      
      "2 If Jackson had purported to limit the power of the State to try an accused because of an unlawful pretrial commitment, it would have marked a drastic departure from the ‘established rule that illegal arrest or detention does not void a subsequent conviction.’ Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975).”
     
      
      . Of course, a state may confer upon its citizens greater rights than the Constitution commands. This is precisely what it has done in Rule 3.213, which provides for dismissal of the charges after the requisite findings of continued incompetency and no substantial probability of regaining competency in the foreseeable future are made. A defendant’s entitlement to dismissal of the charges is limited, however, to what the rule provides, and since here he is entitled to no relief under the rule, he is entitled to no relief.
     