final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Nassau County. Robert M.
Thomas, Public Defender, and Courtenay H. Miller, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant
Attorney General, Tallahassee, for Appellee.
appeal from a judgment and sentence for selling cocaine
within 1000 feet of an assisted living facility, Appellant
argues that the trial court erred by failing to hold a
competency hearing and adjudicate Appellant competent to
stand trial. We agree with this argument, reject
Appellant's other arguments without further comment, and
remand for the trial court to adjudicate Appellant's
competence to stand trial.
record reflects that Appellant's trial counsel filed a
suggestion of incompetence before trial, citing
Appellant's age, distrust of counsel and of the legal
process, and paranoia about defense counsel's colluding
with the prosecutor. The trial court promptly ordered an
expert examination of Appellant. Thereafter, defense counsel
cited the same issues as grounds for a motion to withdraw,
which was granted; and new counsel took over. The record then
falls silent about Appellant's competence. There is no
indication that the expert's report was filed, that the
court conducted a hearing, or that the court adjudicated
Appellant competent. This failure to hold a hearing and
adjudicate competence is reversible error.
criminal defendant has a procedural due process right to the
observance of procedures adequate to protect his or her right
not to be tried or convicted while incompetent to stand
trial." Zern v. State, 191 So.3d 962, 964 (Fla.
1st DCA 2016) (citing Dougherty v. State, 149 So.3d
672, 676 (Fla. 2014)). The test for competence is whether a
defendant can consult with his attorney with a reasonable
degree of rationality and whether he understands the nature
of the proceedings against him. Mairena v. State, 6
So.3d 80, 85 (Fla. 5th DCA 2009) (quoting Hill v.
State, 473 So.2d 1253, 1257 (Fla. 1985)).
Defendants' attorneys are in a unique position to comment
on both of these factors, which is why their expressed doubts
as to their client's competency are given such great
weight in determining whether a hearing is required. See
Avilesrosario v. State, 152 So.3d 851, 854 (Fla. 4th DCA
2014) (citing Calloway v. State, 651 So.2d 752, 754
(Fla. 1st DCA 1995)).
trial court must "observe the specific hearing
requirements set forth in [Florida Rules of Criminal
Procedure 3.210-.212]." Dougherty, 149 So.3d at
676. The rules provide that a court shall set a
competency hearing within twenty days if "defense
counsel, the state, or the trial court has reasonable grounds
to suggest that a defendant is not mentally competent to
proceed." Mairena, 6 So.3d at 85 (citing Fla.
R. Crim. P. 3.210(b)); accord Zern, 191 So.3d at 964
(citing Brooks v. State, 180 So.3d 1094, 1096 (Fla.
1st DCA 2015)); Avilesrosario, 152 So.3d at 854
(citing Fla. R. Crim. P. 3.210(b)). The trial court has
discretion in determining whether the circumstances,
including counsel's representations, create the required
"reasonable grounds." Rodgers v. State, 3
So.3d 1127, 1132 (Fla. 2009) (citing rule 3.210(b)). The
trial court's determination of reasonable grounds is
reviewed for abuse of discretion. Rodgers, 3 So.3d
this case, the trial court appropriately ordered a competency
evaluation based on trial counsel's fact-based, good
faith suggestion of incompetence. The trial court was
required to hold a competency hearing and enter a written
order adjudicating Appellant competent before he could be
tried. It appears, however, that the change of counsel may
have caused the issue to fall between the cracks, resulting
in reversible error.
error does not necessarily require a new trial, however. This
Court has previously held that "[t]he trial court may
make a retroactive determination of competency with no change
in Appellant's judgment or sentence, if the evidence that
existed prior to the hearing on Appellant's charges
supports a finding that he was competent at that time."
Cotton v. State, 177 So.3d 666, 668-69 (Fla. 1st DCA
2015). "If the trial court cannot make a retroactive
determination, it must properly adjudicate Appellant's
present competency and, if the court finds Appellant
competent to proceed, " conduct a new trial.
Id. at 669.