MARKHAM v. NORTH FLORIDA EVALUATION AND TREATMENT CENTER (2018)

We treat Appellee's “response” to the initial brief as a confession of error. However, we decline to accept the concession, and we affirm. See Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002) (a confession of error is not binding upon an appellate court, and it is the practice of the appellate courts not to accept erroneous concessions by the state) (citations omitted).

Appellant argues that this case is controlled by Ungerbuehler v. State, 729 So.2d 954 (Fla. 1st DCA 1998), in which this Court reversed an order authorizing medical treatment, finding that the state presented “absolutely no evidence that the multidisciplinary team deemed the treatment to be necessary, as required by section 916.107(3)(a), Florida Statutes.” Id. at 954. This Court found that the only person to testify, the psychiatrist, “did not indicate that she spoke on behalf of the multidisciplinary team, nor was there testimony that the psychiatrist had discussed the necessity of medication with the treatment team.” Id. at 955. In contrast, here, after testifying that he was requesting multiple medications for use in treating Appellant, and that Appellant would be observed for side effects and treated accordingly, the psychiatrist testified that the treatment team was “in agreement” with “this protocol.” We find that this testimony is sufficient to support the lower tribunal's order.

Per Curiam.

Rowe, Kelsey, and M.K. Thomas, JJ., concur.