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Moreno v. State

Florida Court of Appeals, Third District

November 8, 2017

Luis Fundora Moreno, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian, Judge. Lower Tribunal No. 12-15201

          Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.

          Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.

          LUCK, J.

         Defendant Luis Fundora Moreno appeals the trial court's finding that he was competent to be sentenced for violating his community control. After a brief competency hearing where the parties stipulated that the two doctors appointed to evaluate Moreno would testify consistently with their written reports (both doctors found Moreno competent), the trial court accepted the stipulation and made its competency finding. Moreno contends the trial court erred by not making an independent determination of Moreno's competency, and abused its discretion by failing to appoint a neuropsychologist. After review of the record and briefs, and with the benefit of oral argument, we affirm the competency finding and sentence although we remand for the limited purpose of having the trial court enter a written competency order memorializing its oral ruling.

         Factual Background and Procedural History

         The First Sentencing Hearing.

         In February 2014, Moreno was charged with violating his community control by failing to complete a mental health evaluation; failing to register for a domestic violence class; and failing to submit to a random drug test. A few months later, in May, at the community control violation hearing, Moreno asked the trial court to discharge his public defender so he could represent himself. The trial court conducted a Faretta hearing, [1] and after taking testimony from Moreno and finding that he knowingly, voluntarily, and intelligently waived his right to counsel, discharged the public defender, and continued with the hearing with Moreno as his own counsel. At the end of the hearing, the trial court found that Moreno willfully and substantially violated his community control. The trial court then turned to sentencing. After hearing from the state, Moreno's probation officer, and Moreno, the trial court sentenced Moreno to twenty-one years in prison, followed by two years of community control and thirteen years of probation.

         The First Appeal.

         Moreno appealed, and we affirmed in part and reversed in part. We affirmed the revocation of Moreno's community control, but reversed the sentence because the trial court did not offer Moreno the assistance of counsel before the sentencing portion of the hearing as required by Florida Rule of Criminal Procedure 3.111(d)(5). Moreno v. State, 167 So.3d 522, 523 (Fla. 3d DCA 2015) (confession of error). (Florida Rule of Criminal Procedure 3.111(d)(5) provides that if a defendant, as here, waives his right to counsel, "the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel." That includes a sentencing hearing.) We remanded "for the limited purpose of holding a new sentencing hearing with an offer of counsel." Id.

         The Competency Hearing.

         On remand, with the public defender now representing Moreno, Moreno's counsel told the trial court there were reasonable grounds to believe Moreno was not competent to proceed with the sentencing hearing, and asked that doctors be appointed to evaluate his competency.[2] The trial court granted the motion, appointed two doctors to evaluate Moreno, and reset the case so the doctors had time to complete their evaluations. When the trial court called back the case three ...


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