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Lewinson v. State

Florida Court of Appeals, Fifth District

June 16, 2017

STANFORD DEON LEWINSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Osceola County, Leticia J. Marques, Judge.

          James S. Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

          PER CURIAM.

         Stanford 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.[1] We agree and reverse.

         Lewinson 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.

         Lewinson 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 evaluation.

         Despite ordering the evaluation, the trial court proceeded to sentencing without Dr. Danziger's report and without conducting a competency hearing.[2] This was error.

         "When 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.

         Rule 3.210(b) provides:

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 court.

Fla. R. Crim. P. 3.210(b) (emphasis added). Sentencing is a "material stage" of the proceedings. Fla. R. Crim. P. 3.210(a)(1).

         The 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. ...


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