from the Circuit Court for Hillsborough County; Chet A.
L. Dimmig, II, Public Defender, and David B. Falstad, Special
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Wendy
Buffington, Assistant Attorney General, Tampa, for Appellee.
ORDER OF THE COURT:
State's motion for clarification is granted in part. The
prior opinion, dated September 16, 2016, contained a
typographical error indicating that Mr. Frye went to trial in
December 2010 without a competency determination. Instead,
Frye went to trial without a competency determination in
December 2012. The prior opinion is withdrawn, and the
attached opinion is substituted only to correct this error.
No further motions will be entertained.
trial court initially adjudicated Joseph Frye incompetent to
stand trial and committed him for treatment. Although the
specialists appointed to determine Frye's competency
later opined that it had been restored, he was then tried
without the court first adjudicating him to be competent.
Frye appealed the resulting convictions, and we relinquished
jurisdiction to give the trial court an opportunity to
attempt an assessment of Frye's competence at the time of
trial. On July 29, 2015, a nunc pro tunc competency hearing
was held and the trial court ruled that Frye had been
competent during his trial in December 2012. We find that the
trial court's order was not supported by competent
substantial evidence, and we reverse Frye's convictions.
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." Roman v. State, 163 So.3d 749,
750-51 (Fla. 2d DCA 2015) (quoting Molina v. State,
946 So.2d 1103, 1105 (Fla. 5th DCA 2006)). Once the trial
court receives notice that a defendant has regained
competency, "the court shall hold a hearing to determine
if a defendant is competent to proceed." Id. at
751. Generally, a trial court's failure to determine that
a defendant regained competency prior to trial requires that
his conviction be reversed. Dougherty v. State, 149
So.3d 672, 678-79 (Fla. 2014).
situations, however, competency may be determined
retrospectively, although such after-the-fact determinations
are "inherently difficult, even under the most favorable
circumstances." Id. at 679; see also Drope
v. Missouri, 420 U.S. 162, 183 (1975). "[A] nunc
pro tunc competency evaluation could be done where 'there
are a sufficient number of expert and lay witnesses who have
examined or observed the defendant contemporaneous with
trial available to offer pertinent evidence at a
retrospective hearing.' " Dougherty, 149
So.3d at 679 (emphasis added) (quoting Mason v.
State, 489 So.2d 734, 737 (Fla. 1986)). "The
chances of conducting a meaningful retrospective competency
hearing decrease when experts must rely on a cold
record." Id. (quoting Jones v. State,
740 So.2d 520, 523 (Fla. 1999)).
the nunc pro tunc competency hearing in this case, the trial
court considered the testimony and reports of two mental
health experts. But both experts were specifically appointed
to offer retrospective opinions of Frye's
competency at the time of trial. Both opined that Frye had
been competent throughout. The experts reported that they
attempted brief interviews with Frye in May 2015 and also
reviewed an assortment of documentary evidence-psychiatric
evaluations from 2010, miscellaneous trial transcripts, a
recorded police interview from 2009, jail phone calls, and
jail pharmacy records. This evidence, by itself, cannot
satisfy Dougherty's criteria where neither
expert had observed or examined Frye at or near the time of
trial. The record establishes that one expert had no contact
with Frye during the two and a half years preceding trial.
The second expert acknowledged meeting Frye for the first
time in May 2015. A nunc pro tunc competency witness cannot,
as the experts did in this case, rely solely on a cold
reject the trial court's order retroactively finding Frye
competent because this finding was not supported by competent
substantial evidence. We also reverse Frye's convictions
and remand for new trial. However, we caution that as of this
time, there remains a presumption that Frye is incompetent to
stand trial. Before trying Frye anew on remand, the trial
court must first conduct a hearing to determine whether Frye
is competent to proceed.
and remanded for ...