Odom v. State

350 So.3d 490 (Mem)

Dylan Ray ODOM, Petitioner,

v.STATE of Florida, Respondent.

No. 1D22-2652

District Court of Appeal of Florida, First District.

November 16, 2022

Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner.

Ashley Moody, Attorney General, and Zachary Lawton, Assistant Attorney General, Tallahassee, for Respondent.

Per Curiam.

DISMISSED .

Lewis and Jay, JJ., concur; Makar, J., specially concurs with opinion.

Makar, J., concurring specially.

Dylan Ray Odom, who was charged with two counts of aggravated assault, was previously declared incompetent to stand trial. Upon his motion to be discharged due to continual incompetency, Odom was subsequently deemed to have had his competency restored despite the record containing no competent substantial evidence to support this conclusion. At best, one mental health expert opined that Odom was "really close to being competent" but was "marginally" incompetent; the other expert opined that Odom "is currently incompetent and in need of further competency restoration services" and, indeed, not susceptible to becoming competent via treatment. One of the two experts opined that Odom showed some signs of malingering, but that didn't negate his conclusion that Odom was incompetent, if only marginally so.

At issue is whether we have the authority by extraordinary writ to review and remedy the lack of an evidentiary foundation for the finding that Odom is currently competent to stand trial. Extrapolating from related precedent—some holding that denial of the constitutional right to a jury trial is not subject to such review—it appears that judicial power to provide relief in this case at this juncture is lacking due to the lack of irreparable harm. Jaye v. Royal Saxon, Inc. , 720 So. 2d 214, 214 (Fla. 1998) ("[C]ertiorari review is inappropriate because a trial court's order denying or striking a demand for a jury trial does not cause an irreparable injury that cannot be remedied on direct appeal."). Instead, Odom will have a right at the end of the criminal process to seek relief. Dougherty v. State , 149 So. 3d 672, 678–79 (Fla. 2014) ("Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand."); Donaldson v. State , 895 So. 2d 1220, 1222 (Fla. 1st DCA 2005) (Failure to allow testimony of defendant's expert is a departure from essential requirements of law but appellate court is "constrained to deny the petition for...