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 Duval County. Mark J.
Thomas, Public Defender, and Barbara J. Busharis, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Michael McDermott, Assistant
Attorney General, Tallahassee, for Appellee.
raises three issues in this direct appeal from a judgment and
sentence for armed robbery with a deadly weapon. We find one
reversible error that requires further proceedings below, and
affirm on the other two issues.
Pre-Trial Suggestion of Incompetence
proceedings are required to establish Appellant's
competency. Appellant's counsel filed a Suggestion of
Mental Incompetence in compliance with Florida Rule of
Criminal Procedure 3.210, specifying a factual basis for
doubting Appellant's competency, representing that an
expert had found Appellant incompetent to proceed, requesting
further evaluation, and certifying that the suggestion was
filed in good faith and on reasonable grounds. The trial
court took no action on the suggestion. Several weeks later,
and just a few days before trial, defense counsel withdrew
the Suggestion of Mental Incompetence. Just a few days after
that, between voir dire and jury selection, defense counsel
reported to the court that Appellant was claiming not to
understand the proceedings, but that counsel had had
Appellant evaluated and the report deemed him competent.
Counsel did not file the competency report, but represented
as an officer of the court that Appellant had been deemed
competent. The trial court held no competency hearing and
made no independent adjudication or written determination of
Appellant's competence. The parties then proceeded to
trial. On the facts of this case, this was reversible error.
It is a
due process violation to proceed against an incompetent
criminal defendant. Dougherty v. State, 149 So.3d
672, 676 (Fla. 2014); see also Zern v. State, 191
So.3d 962, 964 (Fla. 1st DCA 2016); Cotton v. State,
177 So.3d 666, 667-68 (Fla. 1st DCA 2015). Not even the
defendant's own stipulation to competency relieves the
trial court of the obligation to hold a competency hearing
and adjudicate the issue of competency if there are
reasonable grounds to question competency.
Dougherty, 149 So.3d at 677-78.
competency hearing is mandatory if there are reasonable
grounds to suggest a defendant is not mentally competent to
proceed with trial. Brooks v. State, 180 So.3d 1094,
1095 (Fla. 1st DCA 2015). The trial court must independently
determine that there are reasonable grounds to question the
defendant's competency before the obligation to hold a
competency hearing arises. Rodgers v. State, 3 So.3d
1127, 1132 (Fla. 2009) ("Under rule 3.210(b), the trial
court must hold a hearing to determine a defendant's
mental condition only where the court 'has
reasonable ground to believe that the defendant is not
mentally competent to proceed.' Fla. R. Crim. P.
3.210(b)." (emphasis added)). While the trial court is
not obligated to accept defense counsel's representations
about a defendant's competency, the court should consider
counsel's representations among all relevant
circumstances. Calloway v. State, 651 So.2d 752, 754
(Fla. 1st DCA 1995) ("There are no 'fixed or
immutable signs that always' require a competency
hearing. . . . The trial court must consider all the
circumstances, including defense counsel's
representations.") (citation omitted) (quoting Scott
v. State, 420 So.2d 595, 597 (Fla. 1982)). We review the
trial court's assessment of the existence of reasonable
grounds for an abuse of discretion. Rodgers, 3 So.3d
at 1132 ("This Court will uphold the trial court's
decision as to whether such a [competency] hearing is
necessary absent an abuse of discretion.").
record reflects that Appellant's trial counsel in good
faith filed a suggestion of incompetence asserting a factual
basis for doubting Appellant's competency and asserting
that Appellant had been evaluated professionally and deemed
incompetent. Although the suggestion requested additional
court-appointed expert evaluation, the court took no action;
and counsel arranged for private evaluation, in which
Appellant was deemed competent. However, the facts that
counsel questioned his client's competence seriously
enough to have him evaluated, the first evaluator found
Appellant incompetent, and counsel filed a good faith motion
in compliance with Rule 3.210, were enough to constitute
reasonable grounds to question Appellant's competency.
Calloway, 651 So.2d at 754 (requiring consideration
of the totality of the relevant circumstances); see also
Boggs v. State, 575 So.2d 1274, 1275 (Fla. 1991)
(holding that a confidential psychiatric expert's opinion
that defendant was incompetent was sufficient reasonable
grounds to activate the process of Rule 3.210(b)). Once
reasonable grounds existed, defense counsel should have filed
the evaluation reports in the record for the benefit of the
trial court and to facilitate appellate review; and the trial
court should have conducted a hearing on the matter.
core due process right at issue is a defendant's
entitlement to the trial court's independent assessment
of competency, followed by a court order adjudicating the
issue. Dougherty, 149 So.3d at 676; Sheheane v.
State, 228 So.3d 1178, 1180 (Fla. 1st DCA 2017)
("It is this right to the trial court's independent
assessment of competency that lies at the heart of the due
process requirement."). On these facts, we conclude the
trial court abused its discretion in failing to hold a
hearing, adjudicate Appellant's competency, and enter an
order memorializing that adjudication.
remand, the trial court must conduct a hearing to determine
if Appellant had been evaluated appropriately and deemed
competent before the trial. If such evidence exists, the
trial court may enter an order finding Appellant competent
nunc pro tunc, in which case there would be no change to
Appellant's conviction or sentence. Dougherty,
149 So.3d at 678-79 (determining that "a retroactive
determination of competency is possible" even though
"inherently difficult"); Cotton, 177 So.3d
at 668-69. Any such competency report, the transcript of such
hearing, and the order adjudicating competency must be filed
of record to facilitate further appellate review, if any. 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 on his charges.