State v. Brown (307 So. 2d 896, 1975)

McCORD, Judge.

This is an appeal under § 924.07, Florida Statutes, from an order granting appellee’s motion for judgment of not guilty by reason of insanity under Rule 3.210(a)(5), F. R.Cr.P.

Appellee is charged with murder in the second degree of one Patrick T. Malcolm by unlawfully stabbing him with a knife. The state filed motion pursuant to Rule 3.-210, F.R.Cr.P., for an order causing the appellee to be examined by a qualified psychiatrist for the purpose of determining his competency to stand trial. Upon the motion and suggestion of insanity, the trial court entered its order directing the psychiatric examination of appellee by Dr. Ernest C. Miller to determine appellee’s mental condition. Subsequently, appellee filed a motion for judgment of not guilty by reason of insanity.

After receiving the report of Dr. Miller and hearing his testimony, the court entered an order committing appellee to the custody of the Sheriff of Duval County to be held without bond pending further mental examination and appointed Dr. Milton B. Mann for further psychiatric examination of appellee. Upon receiving the report of Dr. Mann, counsel for both parties stipulated that it be considered by the court in lieu of his testimony. The court, after hearing arguments of counsel, entered judgment of not guilty by reason of insanity and directed that appellee be held in custody until completion of civil proceedings for his commitment to the Division of Mental Health. It is this order from which the appeal is taken.

Though it is not a part of the record before us, we have been advised by counsel for appellee in his brief and by copy of a subsequent order on petition for writ of habeas corpus included as an appendix to his brief that appellee was subsequently committed to the Department of Health and Rehabilitative Services, Division of Mental Health in Jacksonville, Florida, for examination and evaluation and was discharged by said Department “as no longer needing its services”; that appellee has now been released by said order on habeas corpus entered by another judge of the same circuit, the court finding that there were no civil proceedings for commitment or any criminal charges pending against appellee and no other cause shown why ap-pellee should not be released from custody. As stated, the subsequent proceedings are not a part of the record on this appeal. Putting a part of them in a brief does not make them a part of the record but due to the serious nature of the matter that is before us, we do feel constrained to comment that we have seen no affirmative findings by the court or the Division of Mental Health that appellee is not a danger to society.

We have read the record and briefs in this case and from the evidence presented by the two psychiatrists, it appears that ap-pellee is mentally retarded and, though 44 years of age, possesses only the mental capacity of a ten year old child. It further appears from this evidence that because of this mental retardation, appellee is incapable of assisting his attorney in his defense. Both psychiatrists were of the opinion that his condition could not be benefitted by treatment.

Said Rule 3.210 provides that if from the sanity hearing the court decides that the defendant is insane, it shall commit him to the Division of Mental Health for hospitalization under the provisions of § 394.467, Florida Statutes. It further provides that,

“The order of commitment shall request that the defendant