FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Lisa T. Munyon,
S. Purdy, Public Defender, and Andrew Mich, Assistant Public
Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General, Daytona Beach, for
Burney, Jr. ("Burney") appeals his judgment and
sentence for kidnapping with a weapon and aggravated battery
with a deadly weapon or causing great bodily harm. Burney
does not contest the merits of his case but contends that the
trial court erred in finding him competent to proceed to
trial based upon the parties' stipulation rather than
making an independent determination. We agree.
courts have consistently held that it is error for a trial
court to base its decision regarding a defendant's
competency upon a stipulation rather than making an
independent determination. For example, in Dougherty v.
State, 149 So.3d 672 (Fla. 2014), the Florida Supreme
[N]othing in our precedent or the State's argument
persuades us that a defendant can stipulate to the ultimate
issue of competency, even where the written reports reach the
same conclusion. Even in a situation where all the experts
opine that a defendant is competent, the trial court could
presumably disagree based on other evidence such as the
defendant's courtroom behavior or attorney
representations. Further, the language of rule 3.212(c)(7)
and rule 3.212(b) discussed above does not allow parties to
stipulate to the issue of competency. See Jones, 125
So.3d at 984 (citing Macaluso, 12 So.3d at 915). . .
. Thus, based on our precedent and the procedural rules for
competency determinations, a defendant cannot stipulate that
he is competent, particularly where he has been previously
adjudicated incompetent during the same criminal proceedings.
Further, if a trial court finds that a defendant is competent
to proceed, it must enter a written order so finding.
Id. at 678 (footnote omitted). In Rumph v.
State, this court cited Dougherty in holding
that "[t]he parties may stipulate to deciding competency
based on the written expert reports rather than live expert
testimony, but the defendant and the other parties may not
stipulate to competency itself . . . as the trial court must
make an independent determination on the issue." 217
So.3d 1092, 1095 (Fla. 5th DCA 2017) (citing
Dougherty, 149 So.3d at 678).
instances where a competency finding is erroneously based on
the stipulation of the parties, the courts generally remand
the case to the trial court to make a retroactive
determination of competency. This procedure was explained by
the Fourth District Court in Baker v. State, 221
So.3d 637 (Fla. 4th DCA 2017):
Thus, on remand, if the court can make a nunc pro
tunc finding as to appellant'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.
Id. at 641; accord Holland v. State, 185
So.3d 636, 637 (Fla. 2d DCA 2016) ("Accordingly, we
remand the case to the trial court for entry of a nunc pro
tunc order finding Holland competent to stand trial.").
In making this determination, "[t]he parties may agree
to the use of the previous evaluators' written reports,
which shall be filed with the court and placed in the
record." Sheheane, 228 So.3d at 1181. If the
trial court determines that a defendant was competent at the
time of the trial, it must enter a nunc pro tunc written
order without altering the judgment. See Zern, 191
So.3d at 965. "If the trial court finds that [a
defendant] was incompetent or that a retrospective
determination is not possible in this case, it must hold a
new trial, as long as [the defendant] is and remains
competent on remand." Id.
therefore reverse the trial court's order finding Burney
competent to proceed and remand this case to the trial court
to make a retroactive ...