Tampa Mental Health Defense Attorney | Brancato Law Firm, P.A.

Families usually call us after a loved one stopped taking medication, ended up in a crisis, and was arrested instead of treated. Rocky Brancato, founder of The Brancato Law Firm, P.A., previously served as Chief Operations Officer of the Hillsborough County Public Defender’s Office, overseeing a staff of over 100 attorneys who handled cases involving mental illness every day. Our attorneys at this Tampa criminal defense firm know the local mental health court, the evaluators, and the treatment providers, and we build the defense around both the law and the person.

What Is Competency to Proceed in Florida?

A person is incompetent to proceed if he or she lacks a sufficient present ability to consult with a lawyer with a reasonable degree of rational understanding, or lacks a rational and factual understanding of the proceedings. That is the test from Dusky v. United States, 362 U.S. 402 (1960), and Florida writes it into § 916.12. A case cannot go forward while the person is incompetent.

• Raising it. Under Florida Rule of Criminal Procedure 3.210, the defense, the State, or the judge can raise competency when there are reasonable grounds to believe the person is incompetent. The court may appoint up to three experts.
• Restoration. A person charged with a felony who is found incompetent may be committed for treatment under § 916.13 or treated in the community, and the case resumes if competency is restored.
• Dismissal. Under § 916.145, felony charges must be dismissed after 5 years of continuous incompetence unless the court finds restoration is expected, and may be dismissed after 3 years for many nonviolent offenses. Misdemeanor charges are dismissed after 1 year under Rule 3.213.

How Does the Insanity Defense Work in Florida?

Florida’s insanity defense in § 775.027 asks whether, at the time of the offense, a mental infirmity, disease, or defect kept the person from knowing what he or she was doing or its consequences, or from knowing it was wrong. The defense must prove insanity by clear and convincing evidence, and written notice must be given within 15 days after arraignment under Rule 3.216. A person found not guilty by reason of insanity may be committed for treatment under § 916.15 if found to be dangerous because of mental illness. Insanity is rarely the best path; diversion and mitigation resolve far more cases.

What Options Exist for Intellectual Disability and Autism?

People with intellectual disability or autism are evaluated for competency by specialists under § 916.3012, and restoration takes the form of training rather than treatment. Charges must be dismissed within a reasonable time, no more than 2 years, if the person is not restored. In death penalty cases, intellectual disability bars execution under § 921.137. The U.S. Supreme Court held in Hall v. Florida, 572 U.S. 701 (2014) that Florida could not use a rigid IQ score of 70 as a cutoff, though the Florida Supreme Court held in Phillips v. State, 299 So. 3d 1013 (Fla. 2020) that Hall does not apply retroactively. Read our articles on autism and downward departure and intellectual disability in death penalty cases.

What Mental Health Diversion Programs Are Available in Tampa Bay?

Diversion programs offer treatment instead of a conventional prosecution, and many end in dismissal. Admission is voluntary and depends on the charge, the person’s history, and the prosecutor’s approval.

• Hillsborough County Adult Mental Health Court. The Thirteenth Judicial Circuit runs a felony mental health court that requires State Attorney approval and a clinical screening. It has three phases, can be completed in as little as 9 months, and pretrial cases can be dismissed on completion (program handbook).
• Veterans Treatment Court. Hillsborough’s Veterans Treatment Court began in 2013 and has misdemeanor, felony pretrial, and post-adjudication tracks for veterans and service members with service-related conditions.
• Pinellas Mental Health Court. The Sixth Circuit State Attorney runs a mental health court in Pinellas County for qualifying nonviolent cases. Pasco County has veterans court and drug court.
• Mental health pretrial intervention. Under § 948.08(8), a person charged with a nonviolent felony who has a mental illness can be admitted to a pretrial intervention program, and the charges must be dismissed on successful completion. Misdemeanor mental health programs are authorized by § 948.16(3).
• The Tristin Murphy Act. Chapter 2025-180, effective October 1, 2025, created model misdemeanor and felony mental health diversion programs and expanded the Forensic Hospital Diversion Pilot Program to Hillsborough County. Admission to the felony model program is at the State Attorney’s discretion.

See all of the Thirteenth Circuit problem-solving courts and our article on veterans treatment court.

How Does Mental Illness Affect Sentencing in Florida?

Mental illness can support a sentence below the guidelines. Under § 921.0026(2)(d), a judge may depart downward when the person needs specialized treatment for a mental disorder unrelated to substance abuse and is amenable to treatment, and § 921.0026(2)(c) allows a departure when the person’s capacity to appreciate the conduct or conform to the law was substantially impaired. In State v. Chubbuck, 141 So. 3d 1163 (Fla. 2014), the Florida Supreme Court held that the defense does not have to prove the Department of Corrections cannot provide the treatment. Our attorneys support these motions with expert evaluations and a comprehensive mitigation report. See our article on downward departures in Florida.

Can PTSD Be Used in a Self-Defense Case?

Yes, but only for a limited purpose. In Oquendo v. State, 420 So. 3d 466 (Fla. 2025), the Florida Supreme Court held that PTSD evidence may be relevant to whether the defendant actually believed force was necessary, but it cannot be used to show that a reasonable person would have believed so, and it cannot be used as a diminished capacity defense. Veterans and trauma survivors need a defense built around that distinction. Read about PTSD and self-defense.

What Happens If a Loved One Is Baker Acted?

A Baker Act is an involuntary examination of up to 72 hours under § 394.463 for a person who appears to have a mental illness and poses a danger or cannot care for himself or herself. A person charged with a crime goes back to police custody after the examination. A Baker Act examination by itself does not take away firearm rights. Under § 790.065(2)(a), the firearm disability applies after a court-ordered involuntary placement, or after a voluntary admission that follows specific findings and a judge’s review, and a person can petition the court for relief. See our article on competency to proceed.

Results in Mental Health Cases

These are results our firm has obtained. Every case is different, and past results do not guarantee future outcomes.

• Diversion with mental health treatment. Rocky helped the parents of an incarcerated, mentally ill client through the bond process and negotiated diversion with treatment on a loitering and prowling charge.
• Aggravated assault diverted for a military veteran. A Stand Your Ground motion and the firm’s mitigation report led to pretrial intervention.

See more on our case results page.

Related Mental Health Defense Articles

• The Tristin Murphy Act in Florida
• Forensic Psychiatry and Brain Damage in Criminal Defense
• AI, ChatGPT, and the Insanity Defense
• Coerced Confessions and Forensic Psychologists

Criminal Mental Health Defense FAQs

Talk to a Tampa Criminal Mental Health Lawyer Today

When mental illness and a criminal charge collide, the right plan can mean treatment instead of jail. Our attorneys at The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, can talk with your family today about competency, diversion, and treatment. Call (813) 727-7159 for a confidential consultation. We serve families across Hillsborough, Pinellas, and Pasco Counties.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

This page is for informational purposes only and does not constitute legal advice. Each case is unique, and outcomes depend on the individual facts and circumstances involved. Past results do not guarantee future outcomes.