final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Dan L. Vaughn, Judge; L.T. Case No.
Haughwout, Public Defender, and David John McPherrin,
Assistant Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for
Mark Joseph Saunders, appeals his convictions and sentences
for eight crimes after a jury found him guilty as charged.
Appellant argues the trial court erred in: (1) denying his
motion to sever offenses; (2) denying his motion to strike
the entire jury venire; (3) overruling his objections during
the State's closing argument; and (4) failing to
determine his competence to stand trial. We affirm without
discussion the trial court's rulings on all of the
arguments raised by Appellant except the last argument.
Because we determine the record does not show the trial court
made an independent determination of Appellant's
competence to stand trial after appointing an expert to
evaluate his competence, we reverse Appellant's
convictions and sentences if a nunc pro tunc
determination of competence that comports with due process
cannot be made by the trial court. Thus, we remand for
was charged by amended information with eight offenses: (1)
home invasion robbery with a firearm; (2) grand theft of a
motor vehicle; (3) fleeing or eluding; (4) aggravated battery
on a law enforcement officer with a deadly weapon; (5)
unlawful possession of a bulletproof vest; (6) possession of
a firearm or ammunition by a convicted felon; (7) burglary of
a dwelling while armed; and (8) third degree grand theft. The
matter proceeded to a jury trial on all counts with the
possession of a firearm charge tried in a bifurcated trial.
Appellant was found guilty as charged as to all eight counts.
to trial, defense counsel moved for a competency
determination pursuant to Florida Rule of Criminal Procedure
3.210(b). The trial court granted the motion and appointed an
expert to examine Appellant. However, the record does not
indicate that any competency hearing was held, nor does the
record contain any competency evaluation or a stipulation
that the trial court could determine competency by reviewing
an evaluation that is not in the record.
was sentenced as a prison release reoffender to life in
prison on two of the counts and given lengthy prison
sentences on the remaining counts, all to run concurrently
with credit for time served. Appellant gave notice of appeal.
State correctly concedes that the trial court fundamentally
erred in failing to conduct a competency hearing and to make
a competency determination. See Dougherty v. State,
149 So.3d 672, 677-78 (Fla. 2014); Deferrell v.
State, 199 So.3d 1056, 1060-61 (Fla. 4th DCA 2016). The
remedy for such error depends on the circumstances of each
case. See Dougherty, 149 So.3d at 679.
case is similar to the situations we addressed in Baker
v. State, 221 So.3d 637 (Fla. 4th DCA 2017), and
Silver v. State, 193 So.3d 991 (Fla. 4th DCA 2016),
where the defendants proceeded to a jury trial after the
trial courts appointed experts for competency evaluation, but
the trial courts did not make an independent determination
regarding the defendants' competence. Baker, 221
So.3d at 639; Silver, 193 So.3d at 992-93. As we
noted in Silver, our "supreme court has
recognized that 'a nunc pro tunc competency
evaluation' is possible if 'a sufficient number of
expert and lay witnesses who have examined or observed the
defendant contemporaneous with trial' are
available." Silver, 193 So.3d at 993-94
(quoting Dougherty, 149 So.3d at 679).
we affirm the trial court's rulings on Appellant's
motion to sever charges, motion to strike the entire jury
venire, and objections to the State's closing arguments.
However, we reverse all of Appellant's convictions and
sentences if a nunc pro tunc determination of his
competence at the time of trial that comports with due
process cannot be made by the trial court. Thus, we remand
for further proceedings with the same instructions we gave in
[O]n remand, if the court can make a nunc pro tunc
finding as to [A]ppellant's competency based upon the
existence of evaluations performed contemporaneous with trial
and without relying solely on a cold record, and can do so in
a manner which abides by due process guarantees, then it
should do so and enter a corresponding written order.
Presley [v. State], 199 So.3d [1014, ] 1019 [(Fla.
4th DCA 2016)] [additional citation omitted]. However, if the
[trial] court finds, for any reason, that an evaluation of
[A]ppellant's competency at the time of trial cannot
proceed in a way that ensures [A]ppellant's due process
rights, then the court should ...