Gerry v. State

Full title: STEPHEN WILLIAM GERRY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Second District

Date published: Apr 11, 1984

448 So. 2d 83 (Fla. Dist. Ct. App. 1984)

Opinion

No. 83-538.

April 11, 1984.

Appeal from the Circuit Court, Pinellas County, William Walker, J.

Alice K. Nelson, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

HOBSON, Judge.

In 1978 Stephen William Gerry was acquitted of second degree murder by reason of insanity and committed to the custody of the State Department of Health and Rehabilitative Services ("DHRS") for involuntary hospitalization because of the likelihood that he would injure himself or others if allowed to remain at liberty. He appeals a 1983 order in which the committing court determined that he continues to meet the criteria for involuntary hospitalization and therefore directed that he be returned to the state mental hospital for further treatment.

We reject Gerry's main arguments on appeal since they are devoid of merit. However, we accept his final contention that the court below exceeded its jurisdiction by commanding in the recommitment order that the administrator of the state mental hospital "not file an immediate request for the release of STEPHEN WILLIAM GERRY." An administrator of a state mental hospital acts under the authority of the DHRS, a department of the executive branch. The DHRS is solely responsible for supervising state mental health facilities, programs, and services. Section 394.457(1), Fla. Stat. (1983). Consistent with these duties, an administrator of a state mental hospital is provided with the power to file a report with the committing court "at any time" for the release of an insanity acquittee if the administrator has concluded that the insanity acquittee no longer meets the conditions for continued involuntary hospitalization. Section 916.15(2), Fla. Stat. (1983). Thus, by mandating in the recommitment order that the administrator "not file an immediate request for the release of STEPHEN WILLIAM GERRY," the court below usurped the jurisdiction of the DHRS; it acted in derogation of the doctrine of the separation of powers of our state government. See State ex rel. Department of Health Rehabilitative Services v. Sepe, 291 So.2d 108 (Fla.3d DCA 1974).

Accordingly, we affirm the order of recommitment but remand with the instruction that the court strike from the order the above-quoted directive.

AFFIRMED and REMANDED.

OTT, C.J., and SCHEB, J., concur.