State of Florida v. Rush

FIRST DISTRICT C OURT OF A PPEAL
STATE OF FLORIDA
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No. 1D2023-2979
_____________________________
S TATE OF F LORIDA,
Appellant,
v.
J ACOB M ICHAEL R USH ,
Appellee.
_____________________________
On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.
December 10, 2025
R OBERTS, J.
The State appeals from an order finding Jacob Michael Rush
incompetent 	to 	proceed 	and 	dismissing 	his 	pending 	criminal
charges. We affirm the portion of the order finding Mr. Rush
incompetent. We reverse the portion of the order granting the
motion to dismiss for the reasons below.
Facts
In 	2021, 	Mr. 	Rush 	was 	charged 	with 	multiple 	counts 	of
possessing child pornography and one count of unlawful use of a
two-way communication device to facilitate the commission of a
felony. In 2022, defense counsel notified the court that in separate
guardianship 	proceedings, 	Mr. 	Rush 	was 	adjudicated 	“totally

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incapacitated” due to developmental disability and his father was
appointed plenary guardian. See §§ 744.331 & 744.3215, Fla. Stat.
(2023). Defense counsel moved to dismiss the criminal charges
under Florida Rule of Criminal Procedure 3.190(c)(4), arguing Mr.
Rush was incompetent to proceed as shown by the guardianship.
The trial court held a competency hearing wherein it heard
from three experts. Dr. Stephen Zieman evaluated Mr. Rush in
February 2023 and found him incompetent to proceed due to a
history 	of neurodevelopmental delay, autism with 	intellectual
disability, 	and 	language 	disability. 	He 	opined 	Mr. 	Rush’s
competency 	was 	most 	likely 	unrestorable. 	Dr. 	Julie 	Harper
evaluated 	Mr. 	Rush 	in 	June 	2022. 	She 	diagnosed 	him 	with
unspecified neurodevelopmental disorder, ADHD, and anxiety.
She found him incompetent to proceed. While her initial report
opined Mr. Rush’s competence could possibly be restored, she
changed 	her 	opinion 	and 	testified 	competency 	could 	not 	be
restored. Dr. Randi McDonald evaluated Mr. Rush in September
2022; she found him competent to proceed.
In November 2023, the trial court entered an order finding Mr.
Rush 	incompetent 	due 	to 	developmental 	disability 	and
unrestorable. In the same order, the court granted the motion to
dismiss. On appeal, the State takes issue with both aspects of the
trial court’s order, the determination of incompetency and the
dismissal of the criminal charges.
Mr. Rush’s Competency
A trial court must make its own independent determination of
competency, which will be upheld on appeal absent an abuse of
discretion. Andres v. State, 404 So. 3d 448, 452 (Fla. 3d DCA 2023)
(citing Evans v. State, 800 So. 2d 182, 188 (Fla. 2001)). We see no
abuse of discretion in the trial court’s determination, which is
supported by competent, substantial evidence. The court took
judicial notice of the guardianship proceedings but expressly noted
the difference between incapacity in guardianship and criminal
incompetence. The court considered the filings and the testimony
from three experts, two of which opined Mr. Rush was incompetent
to proceed due to disability. We affirm the portion of the order
adjudicating Mr. Rush criminally incompetent due to disability.

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Motion to Dismiss
In the same order, the court found Mr. Rush unrestorable and
granted his motion to dismiss. We review the portion of the order
dismissing Mr. Rush’s criminal charges de novo. See State v.
Tillman, 345 So. 3d 311, 312 (Fla. 4th DCA 2022).
As the trial court recognized, there is a difference between
civil 	incapacity 	in 	guardianship 	and 	criminal 	incompetence.
Compare § 744.331, Fla. Stat. (2023) with § 916.3012, Fla. Stat.
(2023). The motion to dismiss was improperly filed under rule
3.190(c)(4) based on incapacity in guardianship. Mr. Rush was not
found criminally incompetent until the November 2023 order.
Dismissal 	of 	criminal 	charges 	for 	criminal 	incompetence 	is
governed by section 916.303, Florida Statutes (2023), and Florida
Rules of Criminal Procedure 3.212 and 3.213.
Section 916.303(1), Florida Statutes, provides, in part:
The 	charges 	against 	any 	defendant 	found 	to 	be
incompetent to proceed due to intellectual disability or
autism shall be dismissed without prejudice to the state
if the defendant remains incompetent to proceed within a
reasonable time after such determination, not to exceed 2
years[.]
See also Hines v. State, 931 So. 2d 148, 150 (Fla. 1st DCA 2006)
(recognizing 	section 	916.303 	creates 	a 	substantive 	right 	to
dismissal of charges if a defendant has remained incompetent by
virtue of intellectual disability for a period of two years). Florida
Rule of Criminal Procedure 3.213 provides:
(a) 	Dismissal 	without 	Prejudice 	during 	Continuing
Incompetency.
After a determination that a person is incompetent to
stand trial or proceed with a probation or community
control violation hearing, the charge(s):
. . . .

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(2) shall be dismissed no later than 2 years after a finding
if incompetency is due to intellectual disability or autism;
. . . .
provided 	that 	the 	court 	finds 	the 	defendant 	remains
incompetent to stand trial[.]
The statute and rule require some amount of time to pass between
when a defendant is declared incompetent and when charges are
dismissed. See State v. Smith, 982 So. 2d 756, 758 (Fla. 4th DCA
2008) (recognizing intellectual disability and autism are typically
lifelong conditions less amenable to treatment than mental illness,
which explains the shorter time period that “must elapse” before
charges are dismissed for these defendants); Williams v. State, 256
So. 3d 954, 957 (Fla. 1st DCA 2018) (recognizing two years is the
outer limit of time for dismissing charges and the reasonableness
of 	time 	is 	in 	consideration 	of 	the 	prospects 	of 	restoring 	the
defendant’s competency); Tillman, 345 So. 3d at 313 (reversing
orders of dismissal where defendant’s failure to appear at status
conferences “thwarted not only the state’s ability . . . to rebut the
presumption that she remained incompetent, but also the trial
court’s ability to make the required finding that she remained
incompetent 	to 	proceed 	before 	dismissal 	of 	the 	charges 	was
authorized by the express text of [rule 3.213(a)]”). A dismissal
under rule 3.213(a) is without prejudice to the State’s ability to
refile the charges should the defendant be declared competent to
proceed in the future. Tillman, 345 So. 3d at 313. The trial court
erred in simultaneously declaring Mr. Rush incompetent and
granting the improperly filed motion to dismiss.
Conclusion
Mr. Rush was properly adjudicated incompetent in November
2023, and he is presumed to remain incompetent until adjudicated
otherwise. See State v. Morris, 297 So. 3d 594, 596 (Fla. 4th DCA
2020) (citing Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014)).
Given 	Mr. 	Rush’s 	diagnoses, 	his 	competency 	may 	indeed 	be
unrestorable. Still, it was error to grant the rule 3.190(c)(4) motion
to dismiss in the same order adjudicating Mr. Rush criminally

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incompetent for the first time. We reverse the portion of the order
granting the motion to dismiss and remand for further proceedings
consistent with this opinion.
A FFIRMED in part, R EVERSED in part, and R EMANDED.
L EWIS, J., concurs; TANENBAUM, J., concurs with opinion.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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TANENBAUM, J., concurring.
This appeal involves an order that both determines Jacob
Rush is incompetent to proceed in his criminal case and dismisses
those charges without prejudice. It makes no final and conclusive
adjudication altering Rush’s legal status vis-à-vis the State, so it
is a non-final order. It nevertheless is appealable as such. See Fla.
R. App. P. 9.130(a)(2) (authorizing non-final order appeals as
“prescribed by rule 9.140”); Fla. R. App. P. 9.140(c)(1)(A), (H),
(authorizing 	a 	State 	appeal 	from 	an 	order 	“dismissing 	an 	[]
information” and an order “finding a defendant incompetent”).
The supreme court’s decision to authorize a category of non-
final order appeal is a matter of judicial policy. See Citizens Prop.
Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 348 (Fla. 2012)
(noting how the court “carefully” delineated the “categories of non-
final orders” based on its “mak[ing] policy determinations” and
“then weigh[ing] the importance of having interlocutory review in
light of potential drawbacks”); cf. Art. V, § 4(b)(1), Fla. Const.
(authorizing a district court to “review interlocutory orders in such
cases to the extent provided by rules adopted by the supreme
court”). 	As 	a 	judicial 	policy 	matter, 	then, 	the 	supreme 	court
already 	has 	decided 	that 	a 	procedural 	error 	producing 	the
enumerated 	final 	order 	is 	sufficiently 	harmful 	to 	warrant
corrective measures by the district court. There is no harmless
error analysis, there being none required by statute. Cf. § 59.041,

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Fla. Stat. (speaking only in terms of reversing a judgment or
granting 	a 	new 	trial); 	§ 924.051(1)(a), 	Fla. 	Stat. 	(defining
“prejudicial error,” which would warrant reversal in a criminal
case, only with reference to an error affecting the “judgment or
sentence”).
The State argues that the trial court committed procedural
error when it granted Rush’s motion to dismiss the information
under 	Florida 	Rule 	of 	Criminal 	Procedure 	3.190(c)(4) 	after
determining that Rush was incompetent to proceed. I agree. The
motion did not assert that there were undisputed facts material to
the charges against him showing a lack of guilt. Rather, the motion
spelled out details suggesting Rush was incompetent to proceed.
Though done through a motion to dismiss under rule 3.190(c)(4)—
and 	not 	the 	rules 	governing 	competency—Rush’s 	counsel
sufficiently raised the question whether Rush had an intellectual
disability or autism that rendered him incompetent to proceed.
The trial court appointed experts and held a hearing as section
916.3012, 	Florida 	Statutes; 	and 	Florida 	Rules 	of 	Criminal
Procedure 3.210 and 3.212 require.
Once 	the 	trial 	court 	found 	that 	Rush 	was 	incompetent,
however, rule 3.190 was not the proper vehicle for considering
dismissal. A motion filed under the rule’s subdivision (c)(4) asserts
that “the undisputed [material] facts do not establish a prima facie
case of guilt against the defendant.” The subdivision’s procedure
helps “avoid a trial when there are no material facts genuinely in
issue.” State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000). But
Rush’s competency has nothing to do with his guilt, so a dismissal
under 	that 	rule 	was 	improper. 	Notably, 	Rush’s 	post-hearing
memorandum 	supporting 	a 	finding 	of 	incompetency 	did 	not
mention dismissal.
The 	only 	other 	matter 	for 	the 	trial 	court’s 	immediate
consideration concerning Rush’s incompetency was whether to
order treatment while he remained on pre-trial release or to civilly
commit him. See Fla. R. Crim. P. 3.212(c); Fla. R. Crim. P. 3.213(b);
cf. Fla. R. Crim. P. 3.212(d) (requiring either that the defendant
“be released” (rather than the charges be dismissed) or that the
State “initiate civil commitment proceedings” if the defendant “is
found to be mentally incompetent to proceed and there is no

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substantial probability that the defendant will gain competency to
proceed in the foreseeable future”).
As the primary opinion explains, the court’s determining
whether 	to 	dismiss 	had 	to 	wait 	for 	another 	day—through 	a
subsequent, properly framed motion that put the court and the
State 	on 	notice 	that 	Rush’s 	restorability 	was 	at 	issue. 	Cf.
§ 916.303(1), Fla. Stat. (requiring dismissal only if “the defendant
remains incompetent” for a “reasonable time after” the trial court
makes “such determination” (emphases supplied)); Fla. R. Crim. P.
3.213(a) (providing for dismissal only if the trial court determines
that the defendant “remains” incompetent to proceed).
The cure for the trial court’s procedural irregularity here is to
affirm the order’s determination that Rush is incompetent to
proceed but vacate the part that grants his motion to dismiss, filed
under Florida Rule of Criminal Procedure 3.190(c)(4).
_____________________________
James Uthmeier, Attorney General, and Daren Shippy, Assistant
Attorney General, Tallahassee; Sarah Jane Barickman, Assistant
State 	Attorney, 	Children’s 	Advocate 	Center, 	Niceville, 	for
Appellant.
Glenn 	Matthew 	Swiatek, 	Criminal 	Defense 	Attorney, 	P.A.,
Crestview, for Appellee.