March 2008

Report No. 08-17

Incompetent to Proceed Adjudications Increasing
Background _____________

at a glance
Persons deemed incompetent to proceed must
undergo competency restoration training before they
can stand trial for criminal charges. Defendants who
are deemed a danger to themselves or others are
served in secure forensic facilities, while others
receive competency restoration training in the
community under conditional release. The estimated
cost to restore competency in community settings is
lower than that of forensic facilities.
The number of defendants with mental illness
adjudicated incompetent to proceed is estimated to
have doubled over the last four fiscal years. This
increase is due, in part, to an increase in felony
arrests and felony filings, as well as greater numbers
of persons with mental illness coming into contact
with the criminal justice system.

Scope __________________
As directed by the Legislature,
addressed two questions.
ƒ

ƒ

OPPAGA

How does the process to restore competency to
persons who are adjudicated incompetent to
proceed operate?
Have incompetent to proceed adjudications
increased over time, and what factors
contribute to this increase?

Florida law provides that persons must be
mentally competent before they stand trial for
their offenses. Specifically, defendants must be
able to appreciate the range and nature of the
charges and penalties that may be imposed, and
must be able to understand the adversarial nature
of the legal process and disclose to counsel facts
pertinent to the proceedings at issue. Defendants
also must manifest appropriate courtroom
behavior and be able to testify relevantly. 1
If a defendant is suspected to be incompetent, the
court or counsel for the defendant or the state
may file a motion for examination to have the
defendant’s cognitive state assessed. As shown in
Exhibit 1, within 20 days of filing this motion the
court will appoint experts to evaluate the
defendant’s cognitive state.
The defendant’s
competency is then determined by the judge in a
subsequent hearing. If the defendant is found to
be competent, the criminal proceeding resumes.
If, however, the defendant is found to be
incompetent to proceed, competency must be
restored before the criminal proceeding may
resume.

1

Sections 916.12 and 916.3012, F.S.

Office of Program Policy Analysis & Government Accountability
an office of the Florida Legislature

OPPAGA Report

Report No. 08-17
It is the Legislature’s intent that competency
restoration take place in the least restrictive
setting.
If the court determines that the
defendant is a danger to himself or others, it may
involuntarily commit the defendant to a secure
forensic facility. Defendants may be placed on
conditional release to receive competency
restoration training in the community if the court
finds they do not pose a risk to public safety. 3

Exhibit 1
The Court Determines If Defendant Is Incompetent to
Proceed After an Expert Evaluation(s)
Within 20 days of
filing of motion
Expert evaluation(s)
Motion for
examination
Arrest

Criminal proceeding

Undergo competency
restoration training

Hearing to
determine
defendant’s
competence

Incompetent
Competent

Once a defendant is determined to have regained
his or her competence to proceed, the court is
notified and a hearing is set for the judge to
determine the defendant’s competency. If the
court finds the defendant to be competent, the
criminal proceeding resumes. If, however, the
court finds the defendant incompetent to proceed,
the defendant is returned to a forensic facility or
community restoration on conditional release
until competency is restored.

Proceed with
criminal trial

Source: Florida Rules of Criminal Procedure, 2008.

The Department of Children and Families has
oversight of felony defendants who are found
incompetent to proceed due to mental illness,
while the Agency for Persons with Disabilities is
charged with oversight of felony defendants who
are incompetent to proceed due to developmental
disabilities. 2

Forensic

are

secure

but

costly.

Defendants determined to be a danger to
themselves or others, and for whom all available
less restrictive alternatives have been determined
inappropriate, may be involuntarily committed to
forensic facilities. In Fiscal Year 2006-07, 1,396
defendants were involuntarily committed to
forensic facilities within the Department of
Children and Families and 118 to the Agency for
Persons with Disabilities for competency
restoration.

Questions and Answers ___
Question 1: How does the process of
restoring competency to proceed operate?

Competency restoration is designed to help
defendants meaningfully participate in their own
defense. Persons judged to be incompetent to
proceed due to mental illness are provided
medical and psychological treatment services to
stabilize their condition.
Persons with
developmental disabilities will receive behavioral
training with the goal of learning skills they can
use to mitigate the effects of their disabilities.
Additionally, both groups receive educational
counseling to help them understand how the
legal process works, the charges brought against
them, the possible court dispositions, and their
rights under the law.

There are five secure forensic facilities in the state
for persons with mental illness and one facility for
persons with developmental disabilities that offer
competency training. 4 In addition to competency
restoration training and evaluation services, these
facilities also provide basic support services such
as food and clothing, healthcare, and recovery
services including holistic mental health treatment
or skills training with the individual through an
interdisciplinary team.

3

2

facilities

Conditional release is a court-ordered outpatient treatment plan.
See ss. 916.17 and 916.304, F.S.
4
The department operates Florida State Hospital in Chattahoochee
and North Florida Evaluation and Treatment Center in Gainesville.
The department contracts with Geo Group, Inc., for the operation
of South Florida Evaluation and Treatment Center (SFETC) and
SFETC Annex, both in Miami, and the Treasure Coast Forensic
Treatment Center in Indiantown. The Agency for Persons with
Disabilities operates the Mentally Retarded Defendant Program at
Florida State Hospital in Chattahoochee.

Specifically, Ch. 916, F.S., refers to defendants who are
developmentally disabled due to mental retardation or autism,
which are disabilities that affect mental functioning.

2

Report No. 08-17

OPPAGA Report

Forensic facilities provide a secure and structured
environment for dangerous defendants but are
costly. As shown in Exhibit 2, the average per
diem cost of serving persons adjudicated
incompetent to proceed due to mental illness in
forensic facilities is $337. As the department
reported an average of 106 days to restore
competency in a forensic facility in Fiscal Year
2006-07, the average cost is approximately $36,000
per defendant. 5

Community restoration is cheaper but less secure.

The court may order defendants who do not
require a secure environment to be conditionally
released.
In these cases, the court orders
defendants to receive outpatient treatment and
training in the community and to report for further
evaluation at specified times during the release
period. Community services also are used for
persons who have been released from forensic
facilities because they no longer meet the criteria
for involuntary commitment but have not yet been
restored to competency. Based on available data
we estimate that 1,431 defendants with mental
illness received community-based competency
restoration in Fiscal Year 2006-07. 6 The Agency for
Persons with Disabilities is unable to provide
complete data to determine the number of
defendants with developmental disabilities
statewide
who
received
community-based
competency restoration. However, the agency
reported that 215 persons received competency
training in 11 of 14 service areas in Fiscal Year
2006-07. 7

Exhibit 2
The Average Per Diem Cost for Forensic Facilities
Operated or Contracted by Department of Children
and Families is $337
Facility
Florida State Forensic
Hospital
North Florida Evaluation
and Treatment Center
South Florida Evaluation
and Treatment Center
South Florida Evaluation
and Treatment Center
Annex
Treasure Coast
Treatment Center
Total/Average Cost

Operator
Department of
Children and Families
Department of
Children and Families

Capacity Cost/Day
528

$355

216

333

Geo Group, Inc.

213

323

Geo Group, Inc.

100

N/A

Geo Group, Inc.

175
1,232

N/A
$337

The types of services provided in communitybased competency restoration programs vary
based on the needs of the particular individual and
by availability of services in the community. For
persons with mental illness, these services typically
include medical treatment and case management.
Medical services provide primary medical care,
therapy, and medication administration to improve
functioning or prevent further deterioration
of a person’s mental health condition.
Case
management assesses patient needs and coordinates
and monitors service delivery and compliance with
the court’s conditional release order. The most
frequently used community forensic services for
defendants with mental illness are:

Note:
Cost data provided is based on Fiscal Year 2006-07
expenditures. Expenditure data is not yet available for facilities
where data is not provided.
Source: Department of Children and Families.

The Agency for Persons with Disabilities reports
that the average per diem cost for the Mentally
Retarded Defendant Program is $266 in Fiscal Year
2006-07. The average time to restore competency is
significantly longer for these defendants due to the
nature of their disabilities. According to the
agency, the average number of days to restore
competency in Fiscal Year 2006-07 was 228 days.
Therefore, the average cost to restore competency
for these defendants in forensic facilities was
approximately $61,000.

5

ƒ

The department uses a trimmed mean that removes the top and
bottom 5% from the calculation.

3

Comprehensive Community Service Teams,
which provide holistic case management,
information and referral, in-home and on-site
support, intervention and outreach, supported

6

As some individuals receive competency restoration services in the
community after being released from forensic facilities because they
no longer meet the criteria for involuntary commitment, the total
number of persons served in forensic and community placements
may exceed the number of persons adjudicated incompetent to
stand trial.

7

The areas with missing data include Alachua, Escambia, and Polk
counties, as well as 15 mostly rural counties.

OPPAGA Report

ƒ

ƒ

ƒ

Report No. 08-17

employment, supported housing, and
prevention services;
Florida Assertive Community Treatment
teams, which provide comprehensive nonresidential care services including communitybased treatment, rehabilitative and support
services; these services are available on a 24hours-a-day, seven-days-a-week basis;
Crisis Stabilization or Crisis Support
placements that provide brief, intensive
mental health services available 24 hours a
day, seven days a week; and
Residential Level 2 group residential facilities
that provide rehabilitation with supervision 24
hours a day, seven days a week.

The Agency for Persons with Disabilities could not
identify the cost and length of time to restore
competency in the community for defendants
with developmental disabilities.

Question 2: Have incompetent to proceed
adjudications increased over time, and what
factors contribute to this increase?
Available data indicate that the number of
defendants adjudicated to be incompetent to
proceed has substantially increased over the past
four fiscal years. There are no comprehensive
statewide data on the number of these
adjudications. 9 However, data on incompetent to
proceed adjudications are available from courts in
approximately half of the state’s counties. From
these data, we estimate that 2,123 people were
adjudicated incompetent to proceed in Fiscal Year
2006-07, and that the number of adjudications has
doubled over the past four years (see Exhibit 3).
Appendix A discusses the methodology used to
derive these estimates.

While the Agency for Persons with Disabilities
provides all defendants with developmental
disabilities with competency restoration training,
community-based disability services are limited. If
a defendant is already an agency client on its
Medicaid Home and Community-based Services
waiver, he or she will generally receive services
such as speech and/or physical therapy;
residential nursing; supported living or group
home placement; transportation; and adult day
training. Defendants who are not agency clients
on the Medicaid waiver will generally receive
only competency restoration training. The agency
may, however, provide services to these
defendants using discretionary funding. In Fiscal
Year 2006-07, the agency spent $387,614 in general
revenue discretionary funding to serve 37
defendants in the community; it also spent
$2.7 million of Medicaid waiver funds to serve 62
defendants in the community.

Exhibit 3
Incompetent to Proceed Adjudications
Have Doubled in Recent Years
Estim a te d Nu m b e r o f Ad ju d ica tio n s
2,123
1,963
1,674
1,411
1,061

The length of time and cost to restore competency
in the community varies. Forensic coordinators
employed by the Department of Children and
Families report that community competency
restoration generally takes four to six months; at
the average cost to restore competency in the
community of approximately $59 per day, the
estimated total cost for community competency
restoration ranges between $7,080 and $10,620. 8

2002-03

2004-05

2005-06

2006-07

F isca l Ye a r

Source: OPPAGA analysis, see Appendix A.

9

8

2003-04

Based on analysis of data provided by Department of Children and
Families; this data does not include all patients whose care is
funded by Medicaid managed care.

4

Courts are not required to report the number of felony defendants
adjudicated to be incompetent to proceed to the Office of State
Courts Administrator. However, between 35 and 38 counties
recorded these adjudications voluntarily in the Offender Based
Transaction System in each of the past four fiscal years.

Report No. 08-17

OPPAGA Report
Exhibit 5
The Ratio of Incompetent to Proceed
Adjudications to Felony Filings Has Increased

The growth in the number of incompetent to
proceed adjudications appears to be associated
with two factors—increases in the number of
felony charges filed in court, and growth in the
number of persons with serious and persistent
mental illness who are in community settings. 10

N umbe r of Adjudications
Pe r 1,000 Fe lony Filings

As shown in Exhibit 4, the number of felony
charges filed against defendants by state attorneys
increased by 26% between Fiscal Years 2002-03
and 2006-07. This mirrored a 21% increase in
felony arrests over this period.

2002-03

2004-05

Exhibit 4
Felony Filings Have Increased 26%
Since Fiscal Year 2002-03

26%

2003-04
193,870

2006-07
2006-07
230,417

8.4

9.2

Source: OPPAGA analysis.

This increase suggests that individuals with
mental illness are coming into contact more
frequently with the criminal justice system. This
reflects the deinstitutionalization of persons with
mental illness. Florida, like most states, has closed
psychiatric hospitals in order to treat persons with
mental illness in the community, based on the
theory that persons with severe mental illness
could function in community settings with
appropriate social and psychiatric support
systems. 11 However, many people with mental
illness do not receive the services they need to
appropriately function and, consequently, become
disorderly and/or commit criminal offenses.
For example, people suffering psychotic episodes
may create public nuisances and resist law
enforcement officers that they perceive as
threatening. The Department of Children and
Families reports that battery on a law enforcement
officer is the most common felony charge filed
against people placed in state forensic facilities.
The department also reports that approximately
23% of people in county jails and 16% of state
prisoners have serious mental illnesses. 12

2005-06
219,157

2004-05
199,009

2002-03
182,893
Source: Office of the State Courts Administrator.

The rate at which felony defendants are
adjudicated incompetent to proceed has also
increased over the last four fiscal years. As shown
in Exhibit 5, during Fiscal Year 2002-03, for every
1,000 felony filings, 5.8 defendants were
adjudicated incompetent to proceed. In Fiscal
Year 2006-07 there were 9.2 adjudications per
1,000 felony filings.

11
10

5.8

Our regression model was based on variables associated with
persons with mental illness as persons with developmental
disabilities comprised only 8% of involuntary commitments for
Fiscal Year 2006-07. See Appendix A.

12

The Department of Children and Families reports that the number
of persons with serious and persistent mental illness in Florida
increased by 13% since Fiscal Year 2002-03.

Substance Abuse and Mental Health Services Plan: 2007-2010,

page 66, Department of Children and Families, January 2007.

5

OPPAGA Report

Report No. 08-17

Appendix A

Data and Methodology Used to Estimate the Number
of Incompetent to Proceed Adjudications
There are no comprehensive statewide data on the number of incompetent to proceed
adjudications. Courts are not required to report the number of felony defendants
adjudicated to be incompetent to proceed to the Office of State Courts Administrator. Courts
in between 35 and 38 counties have recorded these adjudications voluntarily in the Offender
Based Transaction System in each of the past four fiscal years.
To estimate the number of incompetent to proceed adjudications, we used an ordinary least
squares regression model to predict the number of adjudications given values for other
known variables. Our analysis covers the period during Fiscal Years 2002-03 through 2006-07.

Data and variables
The Office of State Courts Administrator provided data from the Offender Based Transaction
System showing the number of defendants adjudicated unable to stand trial in circuit court.
Courts in approximately half of Florida’s 67 counties have reported these adjudications
during Fiscal Years 2002-03 and 2006-07. Some large counties, such as Duval, Miami-Dade,
Palm Beach, and St. Lucie, did not report incompetent to proceed adjudications, which could
effect the outcome of our analysis.
Our ordinary least squares regression model included as independent variables the number
of felony filings by county, the number of involuntary commitments to forensic facilities of
defendants found incompetent to proceed due to mental illness by county, and the number
of people with mental illness receiving competency restoration in the community by county.
The number of felony filings by county was obtained through the Summary Reporting
System and was provided by the Office of the State Courts Administrator. The number of
involuntary commitments to forensic facilities of defendants found incompetent to proceed
due to mental illness by county was provided by the Department of Children and Families.
These data are based upon admission packets received by the department in those fiscal
years. The number of people receiving competency restoration services in the community by
county was derived from data provided by the Department of Children and Families. We
counted people with incompetent to proceed admission evaluations for each fiscal year by
county.

Results
Table A-1 shows the results of our analysis. The table presents the relationship between
incompetent to proceed adjudications and the individual variables.
Applying the
relationships predicted by the model resulted in correctly estimating the number of
adjudications in each county 80% of the time.

6

Report No. 08-17

OPPAGA Report

Table A-1
Results of Regression Analysis Show Predictors of Incompetent to Proceed Adjudications
Standardized
Beta Coefficient

Predictive
Strength

Felony Filings

0.536

Moderate

0.000

0.006

For every increase of 1,000
felony filings, there is an
increase of six incompetent
to proceed adjudications.

Number of People
Receiving Community
Competency
Restoration

0.256

Weak

0.000

0.247

For every increase of 1,000
persons receiving
community competency
restoration, there is an
increase of 247 incompetent
to proceed adjudications.

Involuntary
Commitments to
Forensic Facilities

0.184

Weak

0.017

0.282

For every increase of 1,000
persons who are involuntarily
committed to forensic
facilities, there is an increase
of 282 incompetent to
proceed adjudications.

Variable

Source: OPPAGA analysis.

7

Statistical
Significance

Unstandardized
Beta Coefficient

Interpretation

The Florida Legislature

Office of Program Policy Analysis
and Government Accountability
OPPAGA provides performance and accountability information about Florida
government in several ways.
ƒ

OPPAGA reviews deliver program evaluation, policy analysis, and Sunset
reviews of state programs to assist the Legislature in overseeing government
operations, developing policy choices, and making Florida government better,
faster, and cheaper.

ƒ

Florida Government Accountability Report (FGAR), an Internet encyclopedia,
www.oppaga.state.fl.us/government, provides descriptive, evaluative, and
performance information on more than 200 Florida state government programs.

ƒ

Florida Monitor Weekly, an electronic newsletter, delivers brief announcements of
research reports, conferences, and other resources of interest for Florida's policy
research and program evaluation community.

ƒ

Visit OPPAGA’s website, the Florida Monitor, at www.oppaga.state.fl.us

OPPAGA supports the Florida Legislature by providing evaluative research and objective analyses to promote government
accountability and the efficient and effective use of public resources. This project was conducted in accordance with applicable
evaluation standards. Copies of this report in print or alternate accessible format may be obtained by telephone (850/488-0021), by
FAX (850/487-3804), in person, or by mail (OPPAGA Report Production, Claude Pepper Building, Room 312,
111 W. Madison St., Tallahassee, FL 32399-1475). Cover photo by Mark Foley.
Project supervised by Marti Harkness (850/487-9233)
Project conducted by Steve Harkreader, Ph.D., Farah Khan,
Steve Lize, Ph.D., and Kelley Seeger
Gary R. VanLandingham, Ph.D., OPPAGA Director