STATE EX REL. DEPT. OF H & R SERV. v. Sepe

291 So.2d 108 (1974) STATE of Florida, ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, South Florida State Hospital, Relator, v. Alfonso C. SEPE, As Circuit Judge of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Division, Respondent. No. 74-24. District Court of Appeal of Florida, Third District. Revised Opinion February 27, 1974. *109 Mary E. Clark (Tallahassee), for relator. Richard E. Gerstein, State's Atty., and John Lipinski, Asst. State's Atty., for respondent. Before BARKDULL, C.J., and CARROLL and HAVERFIELD, JJ. REVISED OPINION CARROLL, Judge. In this original proceeding in prohibition we issued a rule nisi. The respondent filed a response incorporating a motion to dismiss. The motion to dismiss is denied, and we hold the response fails to show good cause why prohibition should not issue. In the order of the trial court committing a defendant in a criminal case to the Department of Health and Rehabilitative Services, South Florida State Hospital, for treatment and rehabilitation, the court undertook to direct the state agency as to the manner of its treatment of the defendant, including direction as to the drugs to be administered or not administered, and fixing a period for which the directed treatment must extend. The order committing the criminal defendant to the Department of Health and Rehabilitative Services was within the province of the court, under Rule 3.210(a) (3) CrPR, 33 F.S.A. However, by including in the order the above described mandatory directions to the state agency as to the method and duration of the treatment, the trial court proceeded without jurisdiction or in excess of his jurisdiction; first, because the state agency had not been brought into the case by proper process, and had not been furnished with notice and an opportunity to be heard thereon. See State ex rel. O'Dare v. Kehoe, Fla. App., 189 So.2d 268. Secondly, such directions to the state agency purporting to designate and control the type and duration of treatment of the person committed, amounted to usurping the jurisdiction of the state agency to determine those matters, as it is authorized to do by law (§ 394.459 Fla. Stat., F.S.A.). See Dade County v. Baker, Fla.App. 1970, 237 So.2d 545. To thus invade the functions of the state agency as a division of the executive department is in derogation of the doctrine of the separation of powers of the state government. The rule nisi in prohibition is made absolute, and thereby the respondent is restrained from enforcing the provisions of the order relating to the manner and duration of treatment of the defendant committed to the said state agency. It is so ordered.