FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Osceola County, Leticia J.
S. Purdy, Public Defender, and Nicole Joanne Martingano,
Assistant Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General, Daytona Beach, for
Lewinson appeals his 30-year sentence for aggravated battery
with a firearm on a person 65 years of age or older. He
argues the trial court erred in sentencing him prior to a
competency hearing when reasonable grounds existed to
question his competency to be sentenced. We agree and
was charged by Information with home invasion robbery with a
firearm, burglary of a dwelling with an assault or battery,
and aggravated battery with a firearm on a person 65 years of
age or older. Prior to trial, Lewinson's attorney filed a
motion requesting a competency hearing. In response, the
court appointed Dr. Jeffrey Danziger to examine Lewinson and
set the matter for hearing. Dr. Danziger ultimately opined
that Lewinson was malingering and that he was competent to
proceed. The trial court agreed and found Lewinson to be
competent. Thereafter, the case proceeded to trial.
behaved appropriately throughout the evidentiary portion of
the trial. However, while the trial court was charging the
jury, Lewinson exclaimed, "I can't take this no
more, " while motioning with his hand. The jury was
removed, after which Lewinson stated, "I just want to
kill myself." During the outburst, Lewinson apparently
cut himself with his fingernail, which caused him to bleed.
The incident prompted the trial court to remove Lewinson from
the courtroom for the duration of the trial. The trial court
also ordered Lewinson reevaluated for competency prior to
sentencing and reappointed Dr. Danziger to conduct the
ordering the evaluation, the trial court proceeded to
sentencing without Dr. Danziger's report and without
conducting a competency hearing. This was error.
criminal proceedings are held against a mentally incompetent
defendant, the defendant's constitutional right of due
process is denied." Maxwell v. State, 974 So.2d
505, 509 (Fla. 5th DCA 2008) (citing Hill v. State,
473 So.2d 1253, 1259 (Fla. 1985); Molina v. State,
946 So.2d 1103, 1106 (Fla. 5th DCA 2006)). If a defendant is
determined to be incompetent after being found guilty at
trial, but prior to sentencing, the trial court shall
postpone sentencing and proceed pursuant to Florida Rule of
Criminal Procedure 3.210. Fla. R. Crim. P. 3.214.
If, at any material stage of a criminal proceeding, the
court of its own motion, or on motion of counsel for the
defendant or for the state, has reasonable ground to believe
that the defendant is not mentally competent to proceed, the
court shall immediately enter its order setting a time for a
hearing to determine the defendant's mental condition,
which shall be held no later than 20 days after the date of
the filing of the motion, and may order the defendant to be
examined by no more than 3 experts, as needed, prior to the
date of the hearing. Attorneys for the state and the
defendant may be present at any examination ordered by the
Fla. R. Crim. P. 3.210(b) (emphasis added). Sentencing is a
"material stage" of the proceedings. Fla. R. Crim.
question for the court on a motion to determine competency is
"whether there is [a] reasonable ground to believe the
defendant may be incompetent, not whether he
is incompetent." Tingle v. State, 536
So.2d 202, 203 (Fla. 2012) (quoting Scott v. ...