final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Marni A. Bryson, Judge; L.T. Case No.
Haughwout, Public Defender, and Siobhan Helene Shea, Special
Assistant Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm
Beach, for appellee.
to trial, defense counsel moved to appoint experts to
evaluate the defendant for competency to proceed, indicating
that the defendant appeared to suffer from mental illness.
The motion expressed counsel's concerns regarding the
defendant's ability to disclose facts pertinent to the
proceedings and his ability to testify. The circuit court
subsequently reassigned the case to the mental health
specialty division, noting that the defendant's
competency to proceed was an "ongoing issue."
the case was transferred, the presiding judge appointed two
experts to examine the defendant. It appears that the mental
health evaluations were completed as ordered. Thereafter, the
presiding judge entered an order reassigning the case back to
the criminal division "upon agreement of the parties,
" noting, "Defense Counsel notified all parties
that they are formally moving to withdraw their motion to
evaluate the Defendant for competency to proceed." There
is no written motion to withdraw in the record. Also, it does
not appear that the trial court ever held a competency
hearing or issued a written order regarding the
defendant's competency to proceed.
trial court has the duty to make an independent determination
of a criminal defendant's competency to proceed."
Charles v. State, 223 So.3d 318, 329 (Fla. 4th DCA
2017). "A defendant cannot stipulate to the ultimate
issue of competency, because '[a]ccepting a stipulation
improperly absolves the trial court from making an
independent determination regarding a defendant's
competency to stand trial.'" Id. (quoting
Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014)).
"Although the trial court, when the parties agree, may
decide the issue of competency on the basis of written
reports alone, it cannot dispense with its duty to make an
independent determination about a defendant's competency,
and must enter a written order if the defendant is found
competent to proceed." Dougherty, 149 So.3d at
679; see also Fla. R. Crim. P. 3.212(b) ("The
court shall first consider the issue of the defendant's
competence to proceed. If the court finds the defendant
competent to proceed, the court shall enter its order so
finding and shall proceed.").
this record, we cannot tell whether a competency hearing was
ever held, whether defense counsel stipulated to competency,
and whether the trial court found the defendant competent
based on the reports. What is clear is that there is no
written order regarding the defendant's competency in the
the trial court ordered the mental health evaluations, and
those evaluations were completed, the court was required to
move forward with the competency hearing. See Dortch v.
State, ___ So.3d ___, 2018 WL 1617082, at *1 (Fla. 4th
DCA Apr. 4, 2018) ("Once a trial court has reasonable
grounds to believe the defendant is incompetent and orders an
examination, it must hold a hearing, and it must enter a
written order on the issue. Failure to do so is fundamental
error and requires reversal.") (internal citation
omitted). We therefore reverse and remand with instructions
for the trial court to determine the defendant's
competency nunc pro tunc, if possible, and if not,
the judgment and sentence should be vacated and the case set
for trial. See Dougherty, 149 So.3d at 679.
briefly discuss two remaining issues. The trial court erred
in giving the heat of passion instruction where there was no
evidence to support it. See, e.g.,
Douglas v. State, 652 So.2d 887 (Fla. 4th DCA 1995)
(marital squabbles do not constitute reasonable provocation
required for the heat of passion defense); Daley v.
State, 957 So.2d 17, 18 (Fla. 4th DCA 2007) (an argument
alone will not support the heat of passion defense). We find
the error to be harmless. The defendant was convicted of the
lesser included offense of second degree murder, so we are
hard-pressed to see how the defendant was prejudiced by the
inclusion of the heat of passion instruction. The state
argued that this was a case of premeditated murder and told
the jury "this is not a heat of passion case."
Defense counsel argued that the stabbing was an
"impulsive act done by a teenager in a heated moment
with no real motive, " and "not an act done upon
reflection." If the giving of the instruction muddied
the waters, it was to the defendant's benefit. However,
if there is a retrial in this case, the instruction should
not be given.
the defendant's equivocal conduct was insufficient to
invoke his right to remain silent.