Opinion
No. 1D22-2652
11-16-2022
Dylan Ray ODOM, Petitioner, v. STATE of Florida, Respondent.
Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner. Ashley Moody, Attorney General, and Zachary Lawton, Assistant Attorney General, Tallahassee, for Respondent.
Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner.
Ashley Moody, Attorney General, and Zachary Lawton, Assistant Attorney General, Tallahassee, for Respondent.
Per Curiam.
DISMISSED .
Lewis and Jay, JJ., concur; Makar, J., specially concurs with opinion.
Makar, J., concurring specially.
Dylan Ray Odom, who was charged with two counts of aggravated assault, was previously declared incompetent to stand trial. Upon his motion to be discharged due to continual incompetency, Odom was subsequently deemed to have had his competency restored despite the record containing no competent substantial evidence to support this conclusion. At best, one mental health expert opined that Odom was "really close to being competent" but was "marginally" incompetent; the other expert opined that Odom "is currently incompetent and in need of further competency restoration services" and, indeed, not susceptible to becoming competent via treatment. One of the two experts opined that Odom showed some signs of malingering, but that didn't negate his conclusion that Odom was incompetent, if only marginally so.
At issue is whether we have the authority by extraordinary writ to review and remedy the lack of an evidentiary foundation for the finding that Odom is currently competent to stand trial. Extrapolating from related precedent—some holding that denial of the constitutional right to a jury trial is not subject to such review—it appears that judicial power to provide relief in this case at this juncture is lacking due to the lack of irreparable harm. Jaye v. Royal Saxon, Inc. , 720 So. 2d 214, 214 (Fla. 1998) ("[C]ertiorari review is inappropriate because a trial court's order denying or striking a demand for a jury trial does not cause an irreparable injury that cannot be remedied on direct appeal."). Instead, Odom will have a right at the end of the criminal process to seek relief. Dougherty v. State , 149 So. 3d 672, 678–79 (Fla. 2014) ("Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand."); Donaldson v. State , 895 So. 2d 1220, 1222 (Fla. 1st DCA 2005) (Failure to allow testimony of defendant's expert is a departure from essential requirements of law but appellate court is "constrained to deny the petition for writ of certiorari, without prejudice to [defendant's] right to pursue this issue on direct appeal in the event of a conviction.").
Odom's counsel makes a credible argument that allowing Odom to proceed to trial—or engaging in plea bargaining—while he is incompetent results in irremediable harm that cannot be undone months or years later when the criminal case becomes finalized. The counterpoints are that allowing appellate review for substantial competent evidence during the pre-trial stage would inject delays in criminal proceedings and be contrary to precedent in other contexts that certain constitutional harms (such as lack of a jury trial) are not irremediable and can await a later day for appellate review and potential remedies.
In addition, as this case shows, a criminal defendant's mental status is a potentially variable matter—ebbing and flowing between incompetent and competent during the course of a proceeding—making intermittent appellate review unworkable and potentially wasteful. The balance that has been struck is in favor of dismissing this type of petition for lack of irreparable harm and thereby jurisdiction, but allowing review at the end of the case, however it might end. This is not a case where a denial of due process, such as a failure to provide a competency hearing, or the failure to apply the correct law is claimed; this Court has jurisdiction to review such claims. Addison v. State , 327 So. 3d 979, 983 (Fla. 1st DCA 2021) ; see also Zern v. State , 191 So. 3d 962, 964–65 (Fla. 1st DCA 2016). Instead, it involves testing the evidentiary sufficiency of an incompetency determination in a nonfinal order for which only second-tier certiorari review is available, making dismissal appropriate.