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Sallee v. State

Florida Court of Appeals, Second District

April 18, 2018



          Appeal from the Circuit Court for Polk County; Reinaldo Ojeda, Judge.

          Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

          La ROSE, Chief Judge.

         William Sallee appeals the judgment and sentences imposed following entry of his guilty plea. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A), 9.140(b)(1)(A). We affirm his conviction. However, because the trial court made an oral determination of competency without entry of the requisite written order, we remand for the trial court to enter a written nunc pro tunc order finding Mr. Sallee competent to stand trial.


         Mr. Sallee was charged with several offenses arising from his use of a cellphone to record videos and take pictures of sleeping girls. Questions quickly arose concerning his competency to proceed. Defense counsel successfully moved for an order appointing two mental health experts to evaluate Mr. Sallee. See Fla. R. Crim. P. 3.210(b) ("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 . . . ."). Each expert filed a written report concluding that Mr. Sallee was competent.

         The trial court then conducted a competency hearing. Mr. Sallee attended the hearing with counsel. Neither side called a witness. Instead, defense counsel recounted the contents of the experts' reports. Upon questioning by the trial court, defense counsel conceded that each expert had found Mr. Sallee competent. The State agreed. The trial court instructed defense counsel to prepare an order finding Mr. Sallee competent. No such order appears in our records.

         Later, Mr. Sallee pleaded guilty. Pursuant to a negotiated disposition, the trial court sentenced him to fifteen years in prison followed by fifteen years of probation as a sexual offender and a sexual predator. The trial court conducted a thorough plea colloquy with Mr. Sallee.


         Mr. Sallee asserts that the trial court failed to conduct a proper competency hearing, thereby depriving him of due process. Cf. Dougherty v. State, 149 So.3d 672, 677 (Fla. 2014) ("Generally, a proper hearing to determine whether competency has been restored after a period of incompetence requires 'the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.' " (quoting Jones v. State, 125 So.3d 982, 983-84 (Fla. 4th DCA 2013))). He insists that as part of the hearing, the trial court was required to receive witness testimony; and, based upon such testimony, make an independent determination that he was competent to proceed. He asks us to vacate his convictions, and remand for a proper competency hearing.

         We note that "[a] judicial determination of incompetence remains valid until there is a subsequent judicial determination that the petitioner is competent to proceed." Metzger v. State, 741 So.2d 1181, 1183 (Fla. 2d DCA 1999) (quoting Downing v. State, 617 So.2d 864, 866 (Fla. 1st DCA 1993)); see also Dessaure v. State, 55 So.3d 478, 482-83 (Fla. 2010) ("Once a defendant has been deemed competent, the presumption of competence continues throughout all subsequent proceedings."). But the trial court never found Mr. Sallee incompetent. In the absence of a judicial determination to the contrary, Mr. Sallee is, was, and remains presumptively competent. Cf. Child v. Wainwright, 148 So.2d 526, 527 (Fla. 1963) ("A defendant is presumed sane . . . ."); DeFriest v. State, 448 So.2d 1157, 1157 (Fla. 1st DCA 1984) ("There is a legal presumption of sanity in criminal proceedings." (citing Campbell v. Stoner, 249 So.2d 474 (Fla. 3d DCA 1971)));[1] King v. State, 387 So.2d 463, 464 (Fla. 1st DCA 1980) (observing first that "if a person is adjudicated to be mentally incompetent, it is presumed he continues to be so until it is shown his sanity has returned" and then holding "that the burden [to prove appellant's competency] did not shift to the state because appellant had not been previously declared incompetent").

         Mr. Sallee claims that the hearing was inadequate to protect his due process rights not to be tried or convicted while incompetent. See Dougherty, 149 So.3d at 679 ("[W]e conclude that a trial court's failure to observe the procedures outlined in Florida Rules of Criminal Procedure 3.210-3.212-procedures determined to be adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial-deprives a defendant of his due process right to a fair trial."). He relies on Reynolds v. State, 177 So.3d 296, 299 (Fla. 1st DCA 2015), in which the court reversed a ...

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