final until disposition of timely filed motion for rehearing.
appeals from the Circuit Court for the Nineteenth Judicial
Circuit, Martin County; Lawrence Michael Mirman, Judge; L.T.
Case Nos. 43-2015-CF-000870-A, 43-2015-CF-001008-A.
Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
conditionally affirm appellant's sentences for dealing in
stolen property and giving false information to a pawnbroker,
imposed after a jury trial. See Alfonso-Roche v.
State, 199 So.3d 941, 945 (Fla. 4th DCA 2016).
state concedes, there is a problem surrounding the issue of
case, defense counsel moved to appoint an expert to examine
appellant for his competency to proceed. The trial court
ordered a mental examination of appellant. It is unclear from
the record as to whether the trial court made an independent
determination of appellant's competency. According to
appellant's initial brief, defense counsel informed the
trial court that appellant was found competent following an
evaluation, and the progress notes state, "Court minute:
defendant present with attorney; attorney given court date in
open court, competency evaluation completed―found
competent per defense attorney, docket sounding 11/17/15 at 2
p.m." Thus, it appears that defense counsel may have
stipulated to appellant's competency based on the
stipulation does not "absolve[ ] the trial court from
making an independent determination regarding a
defendant's competency to stand trial."
Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014).
"A trial court has the duty to make an independent
determination of a criminal defendant's competency to
proceed." Charles v. State, 223 So.3d 318, 329
(Fla. 4th DCA 2017). "A defendant cannot stipulate to
the ultimate issue of competency, because '[a]ccepting a
stipulation improperly absolves the trial court from making
an independent determination regarding a defendant's
competency to stand trial.'" Id. at 329
(quoting Dougherty, 149 So.3d at 678).
"Although the trial court, when the parties agree, may
decide the issue of competency on the basis of written
reports alone, it cannot dispense with its duty to make an
independent determination about a defendant's competency,
and must enter a written order if the defendant is found
competent to proceed." Dougherty, 149 So.3d at
679; see also Fla. R. Crim. P. 3.212(b) ("The
court shall first consider the issue of the defendant's
competence to proceed. If the court finds the defendant
competent to proceed, the court shall enter its order so
finding and shall proceed.").
not a case where the record contains the trial court's
oral ruling determining competency. See Holland v.
State, 185 So.3d 636, 637 (Fla. 2d DCA 2016) (case
remanded because there was no written order memorializing the
trial court's oral determination of defendant's
competency, as required by law, with directions for the trial
court to enter a nunc pro tunc order finding
the remedy for a trial court's failure to conduct a
proper competency hearing is for the defendant to receive a
new trial, if deemed competent to proceed on remand."
Dougherty, 149 So.3d at 678-79. "A new trial is
not always necessary where the issue of competency was
inadequately determined prior to trial; a retroactive
determination of competency is possible." Id.
the issue of competency was inadequately determined below, a
retroactive determination of competency may be possible where
there are enough expert and lay witnesses who examined or
observed the defendant contemporaneous with the relevant
stage of the proceeding and are available to offer pertinent
evidence at a retrospective hearing." Presley v.
State, 199 So.3d 1014, 1019 (Fla. 4th DCA 2016) (citing
Dougherty, 149 So.3d at 679). "Thus, on remand,
if the court is able to make a nunc pro tunc finding
as to the [defendant]'s competency in a manner which
comports with due process considerations, then it should do
so and enter a written order accordingly." A.L.Y. v.
State, 212 So.3d 399, 404 (Fla. 4th DCA 2017). "On
the other hand, if the court should find, for any reason,
that an evaluation of the [defendant]'s competency at the
time of the [trial] cannot be conducted in such a manner as
to assure the [defendant] due process of law, then the court
should hold a new [trial] upon the court determining that the
[defendant] is competent to proceed." Id.
consistent with Dougherty and our precedent, we
reverse and remand for a nunc pro tunc competency
determination. If, however, the trial court cannot determine
appellant's competency at the time of trial consistent
with due process guarantees, the trial court should vacate