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Bittle v. State

Florida Court of Appeals, Fourth District

April 25, 2018

ROBERT HAROLD BITTLE, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Dina A. Keever-Agrama and Joseph Marx, Judges; L.T. Case No. 50-2010-CF-012102-AXXX-MB.

          Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.

          Ciklin, J.

         The defendant below challenges the trial court's determination that he was competent to stand trial for charges relating to a bank robbery committed in 2010. He argues the trial court erroneously relied on stale competency evaluations. Because the defendant failed to preserve this argument, we affirm.

         The trial court determined the defendant was incompetent to proceed in 2013, but his competency was restored in April 2014. Defense counsel moved to again determine competency in October 2014, alleging that recent events had caused the defendant to decompensate.

         The court appointed two experts, Dr. Douglas Schooler and Dr. Barbara Ann Barone, to examine the defendant. Each of the court-appointed experts evaluated the defendant on October 27, 2014 and each determined he was competent to proceed. The defendant hired two of his own experts to conduct competency evaluations, which evaluations took place on December 19, 2014 and March 13, 2015, respectively.

         Each defense expert concluded he was incompetent.

         The required competency hearing was originally set for November 14, 2014, but was postponed numerous times, at least one time at the defendant's behest. When the hearing finally took place on July 21, 2015, both court-appointed experts testified to their opinion that the defendant was competent. Dr. Barone additionally opined that some of the defendant's impairments were feigned. The defendant called his experts to testify and they generally opined that he was incompetent due to his inability to recall and discuss all of the events surrounding the crime, which inability was related to a brain injury.

         The trial court "broke the 2-2 tie" and, using the evidence presented to it, found the defendant competent to proceed. In the order finding the defendant competent, the trial court directly addressed the issue of the defendant's credibility and adopted the position of the court-appointed expert that the defendant was feigning his memory deficits. The defendant proceeded to trial and was convicted.

         On appeal, the defendant challenges the court's second competency determination, contending that the nine-month-old competency evaluations on which the trial court relied were stale. Therefore, he contends, there was not competent, substantial evidence to support the court's competency determination.

         We agree with the defendant insofar as he argues that the nine-month-old competency evaluations conducted by the court-appointed experts were stale, but for that matter, so were the four- and seven-month-old evaluations presented to the court by the defense. See Washington v. State, 162 So.3d 284, 289 (Fla. 4th DCA 2015) (holding competency evaluations that were six months to one year old were stale and did not constitute competent, substantial evidence of competency); In re Commitment of Reilly, 970 So.2d 453, 456 (Fla. 2d DCA 2007) (holding six-month-old evaluation "was too stale to be relevant" and "did not provide competent, substantial evidence to support the trial court's finding"); Brockman v. State, 852 So.2d 330, 333-34 (Fla. 2d DCA 2003) (noting that four- and eleven-month-old expert reports "were simply too old to be relevant to a determination of Brockman's competency to stand trial" because they "did not speak to Brockman's competence" at the time of trial).

         We nevertheless conclude that there is no reversible error here. Where sufficiency of the evidence is challenged, the general rule requiring a contemporaneous objection to preserve an issue for appellate review applies. F.B. v. State, 852 So.2d 226, 229-30 (Fla. 2003). "Any technical deficiency in proof may be readily addressed by timely objection or motion, thus allowing ...


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