FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Reinaldo Ojeda,
L. Dimmig, II, Public Defender, and William L. Sharwell,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and John M.
Klawikofsky, Assistant Attorney General, Tampa, for Appellee.
ROSE, Chief Judge.
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
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.
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.
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.
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.
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))); 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
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 ...