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Date: 05-15-2018

Case Style:


Case Number: 5D16-3342



Plaintiff's Attorney: Pamela Jo Bondi, Attorney General
Carmen F. Corrente, Assistant Attorney General

Defendant's Attorney: James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender

Description: On April 26, 2015, the day before trial was initially scheduled, Appellant’s counsel
filed a notice of incompetency. As a result, the trial court held a competency hearing, and
after considering the reports of two court-appointed experts, found Appellant incompetent
to proceed and committed him to the Department of Children and Families (DCF) for
treatment at the state hospital under Florida Rule of Criminal Procedure 3.212(c).1
On August 31, 2015, mental health professionals at the North Florida Evaluation
and Treatment Center filed a report representing that Appellant’s competency had been
restored.2 At defense counsel’s request, the trial court once again appointed an expert
to evaluate Appellant under Florida Rule of Criminal Procedure 3.210(b)(4).
The trial court then held a competency hearing on October 22, 2015. However, no
evidence was received at the hearing. Rather, Appellant’s counsel conveyed to both the
State and the trial court that the expert had found Appellant competent to proceed. Even
though it had not yet reviewed the expert’s report, the court found Appellant competent
to proceed “based on the accord of [the expert], and based on . . . the stipulations of the
State and Defense.”
1 This was the second time that Appellant was found incompetent to proceed in this case.

2 We note “[a] determination by DCF that a criminal defendant has regained competency is insufficient to change the defendant’s legal status.” Erickson v. State, 965 So. 2d 294, 295 (Fla. 5th DCA 2007).
The case then proceeded to trial on August 8, 2016, where Appellant admitted that
he killed the victim but raised an insanity defense. The jury convicted Appellant of the
lesser-included offense of second-degree murder.
Florida Law: Competency to Proceed
“[A] criminal prosecution may not move forward at any material stage of a criminal
proceeding against a defendant who is incompetent to proceed.” McCray v. State, 71 So.
3d 848, 862 (Fla. 2011) (quoting Caraballo v. State, 39 So. 3d 1234, 1252 (Fla. 2010)
(citing Medina v. California, 505 U.S. 437, 439 (1992))); see also Fla. R. Crim. P. 3.210(a).
A “material stage” includes the trial, pretrial hearings on factual issues where the
defendant might testify, entry of a plea, contempt hearings, violation of probation
hearings, sentencing, and “other matters where the mental competence of the defendant
is necessary for a just resolution of the issues being considered.” Fla. R. Crim. P.
“Once found incompetent, a presumption clings to the criminal defendant that the
state of incompetence persists until a court, after proper notice and a hearing, finds
otherwise.” Molina v. State, 946 So. 2d 1103, 1105 (Fla. 5th DCA 2006) (citing Jackson
v. State, 880 So. 2d 1241, 1242 (Fla. 1st DCA 2004); Sledge v. State, 871 So. 2d 1020
(Fla. 5th DCA 2004)). “Until the presumption of continued incompetence dissipates, the
criminal defendant may not be tried for the crimes for which he or she is charged.
Violation of this principle constitutes fundamental error[,]” Id. at 1105–06 (citing Jackson),
which may be raised for the first time on appeal. See also Sheheane v. State, 228 So. 3d
1178, 1181 (Fla. 1st DCA 2017) (“This is a denial of due process, resulting in a
fundamental error that requires our intervention despite Appellant’s failure to preserve it
“A proper hearing to determine whether competency has been restored [typically]
requires ‘the calling of court-appointed expert witnesses designated under Florida Rule
of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of
an order finding competence.’” Molina, 946 So. 2d at 1105 (quoting Samson v. State, 853
So. 2d 1116, 1117 (Fla. 4th DCA 2003) (citing Fla. R. Crim. P. 3.212)). However, “where
the parties and the judge agree, the trial Court may decide the issue of competency on
the basis of the written reports alone.” Dougherty v. State, 149 So. 3d 672, 678 (Fla.
2014) (quoting Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971)). In such a case, the trial
court must actually “review[] the expert reports and other evidence.” Rumph v. State, 217
So. 3d 1092, 1095 (Fla. 5th DCA 2017).
Importantly, the court must always make an independent determination as to a
defendant’s competency to proceed. Dougherty, 149 So. 3d at 678. Thus, accepting a
stipulation of the parties as to competency is not permitted. Id.
The Competency Determination in this Case
In this case, the trial court found Appellant competent to proceed based upon the
stipulation of the parties and an expert’s report which the court had not reviewed. In so
doing, the court deferred to the expert and the parties rather than making its own
independent determination. We conclude that this was fundamental error. See
Sheheane, 228 So. 3d at 1180; see also Rumph, 217 So. 3d at 1094.
Given the circumstances here, we remand for the trial court to conduct a nunc pro
tunc competency hearing. “[W]here the issue of competency was inadequately
determined below, a retroactive determination of competency may be possible where
there are enough expert and lay witnesses who examined or observed the defendant
contemporaneous with the relevant stage of the proceeding and are available to offer
pertinent evidence at a retrospective hearing.” Presley v. State, 199 So. 3d 1014, 1019
(Fla. 4th DCA 2016) (citing Dougherty, 149 So. 3d at 679).
Thus, on remand, if the court determines that Appellant was competent to proceed
to trial, it shall enter a written order with findings.3 See Roman v. State, 163 So. 3d 749,
751 (Fla. 2d DCA 2015). However, if the trial court finds that an evaluation of Appellant’s
competency prior to trial “cannot be conducted in such a manner as to assure [Appellant]
due process of law,” or if the court finds that Appellant was not competent, the court must
grant Appellant a new trial.

Outcome: AFFIRMED in part; REVERSED in part; and REMANDED with INSTRUCTIONS.

Plaintiff's Experts:

Defendant's Experts:


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