Opinion
Case No. 2:10-cr-67-FtM-36SPC.
October 1, 2010
ORDER
This Cause is before the Court upon the Defendant's Motion to Declare Defendant Incompetent to Stand Trial (Doc. #29) filed on September 10, 2010. The Motion was referred from the District Court regarding the matter of a competency determination. The Government filed a responsive pleading in the form of a Motion for Psychiatric Examination to Determine Competency (Doc. #33) on September 24, 2010. The issue is now ripe for the Court's determination.
Counsel argues that reasonable cause exists to believe the Defendant is mentally incompetent to the extent he is unable to understand the nature and consequences of the proceedings against him. Counsel submitted a letter from Dr. Frederick W. Schaerf, Board Certified Psychiatrist, which indicates an examination was conducted on August 2, 2010, and suggests that the Defendant is not competent to proceed to the extent that he would not be able to participate in his own defense.
In the Response/Motion, the Government argues the letter provides reasonable cause to believe the Defendant is suffering from a mental disease or defect. As such, the Government moves for a psychiatric examination of the Defendant with the report to be filed and copies provided to Counsel. The Court finds that an independent evaluation of the Defendant is appropriate.
Therefore,
IT IS ORDERED:
(1) The Motion Declare Defendant Incompetent to Stand Trial (Doc. #29) is RESERVED.
(2) The Motion for Psychiatric Examination to Determine Competency (Doc. #33) is GRANTED.
1) The Court finds that there is reason to believe that an examination of the Defendant is necessary and proper in order to determine if Defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense pursuant to 18 U.S.C. § 4241.
2) Pursuant to 18 U.S.C. § 4247(b), the Defendant shall be examined forthwith for the purpose of an examination under 18 U.S.C. § 4241.
3) Said examination should determine Defendant's present competency to stand trial, which shall include his ability to understand the nature and consequences of the proceedings against him and his ability to assist properly in his defense. In making this determination, the examiner shall specifically include in the report the following items:
a. The Defendant's history and present symptoms;
b. A description of the psychiatric, psychological, and medical tests that were employed and their results;
c. The examiner's findings;
d. The examiner's opinions as to diagnosis, prognosis, whether the Defendant is suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
e. With regard to item d, the examiner shall answer the following additional questions:
1. Does the Defendant have present sufficient ability to consult with his counsel with a reasonable degree of rational understanding; and
2. Does the Defendant have a rational, as well as factual understanding of the proceedings against him?
4) The United States Marshal for this District shall transport the Defendant to the nearest federal facility with the capability of such examination. The examination shall last for a reasonable period of time, not to exceed thirty (30) days, unless the facility applies for a reasonable extension not to exceed an additional fifteen (15) days. 18 U.S.C. § 4247(b). Upon completion of the examination, the Marshal shall return the Defendant to the Middle District of Florida for further proceedings.
5) Upon completion of this examination, the examiner shall prepare a written report which includes the answers to the above questions and furnish it to the Honorable Sheri Polster Chappell, United States Magistrate Judge, U.S. Courthouse and Federal Building, 2110 First Street, Fort Myers, Florida 33901, with copies to Yolande Viacava, Assistant United States Attorney, U.S. Courthouse and Federal Building, 2110 First Street, Fort Myers, Florida 33901, and Edward Kelley, Esq., Kelly Kelly, Attorneys as Law, 1415 Dean Street, Fort Myers, Florida 33901.
6) The Department of Justice shall be responsible for payment of the services rendered in accordance with this Order.
DONE and ORDERED in Fort Myers, Florida on this 1st day of October, 2010.