Summary
finding no error in the trial court's dismissal of the petition based solely on the examining committee's report without consideration of other evidence
Summary of this case from Rothman v. RothmanOpinion
No. 76-933.
March 11, 1977.
Appeal from the Circuit Court, Osceola County, Russell S. Thacker, Acting Circuit Judge.
J. Russell Hornsby and James M. Campbell, Orlando, Co-counsel for appellants.
Fred H. Cumbie II of Miles Cumbie, St. Cloud, for appellee.
The trial judge dismissed a Petition for Incompetency upon the filing of a report of the examining committee reporting that the alleged incompetent was indeed competent.
Appellants are daughters of Mildred Bass Keene, the alleged incompetent. They contend the trial court erred in placing too much emphasis upon the report of the examining committee and in not completing the hearing which was held pursuant to Section 744.331(4), Florida Statutes (1975). It is appellants' position that the report of the examining committee is simply evidence to be considered by the trial judge along with other evidence bearing upon the competency of the person involved. For authority supporting that contention, appellants cite Opinion of the Attorney General 050-583. However, Section 394.22(6)(b), Florida Statutes (1950), was the statute in effect at that time and it provided that "the court may without taking any further action terminate the proceedings and dismiss the application." Whereas, the statute controlling these proceedings in pertinent part provides:
"If the report of the examiners is that the alleged incompetent is not mentally or physically incompetent, the court shall dismiss the petition." (Emphasis added.)
Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed. 41 Am.Jur.2d, Incompetent Persons, § 9.
The trial court strictly followed the mandate of the Legislature in dismissing the petition for incompetency and thus did not err in entering the order dismissing appellants' petition which sought to have Mildred Bass Keene declared to be incompetent.
AFFIRMED.
ANSTEAD, J., and FOGLE, HARRY W., Associate Judge, concur.