Sergio M. Hernandez, III, Appellant,
The State of Florida, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Monroe County, Lower
Tribunal No. 14-870-A-K Wayne M. Miller, Judge.
J. Martinez, Public Defender, and Shannon Hemmendinger,
Assistant Public Defender, for appellant.
Jo Bondi, Attorney General, and David Llanes, Assistant
Attorney General, for appellee.
EMAS, FERNANDEZ and LINDSEY, JJ.
Sergio Hernandez, III, appeals from his judgment and sentence
for domestic battery by strangulation and false imprisonment.
As his sole issue on appeal, Hernandez contends that the
trial court committed fundamental error in its determination
of Hernandez's competency to proceed. Specifically,
Hernandez asserts that the trial court failed to make an
independent assessment and independent finding of
Hernandez's competency. We agree, and reverse and remand
for the trial court to hold a hearing in an effort to make a
retrospective determination of Hernandez's competency at
the time of trial.
defendant has a due process right to a competency
determination when there are reasonable grounds to believe
that a defendant is incompetent. Nowitzke v. State,
572 So.2d 1346, 1349 (Fla. 1990) (holding: "Under both
Florida and federal law, it is well-settled that due process
prohibits a person accused of a crime from being proceeded
against while incompetent."); Maxwell v. State,
974 So.2d 505, 509 (Fla. 5th DCA 2008) (holding: "When
criminal proceedings are held against a mentally incompetent
defendant, the defendant's constitutional right of due
process is denied"). See also Drope v.
Missouri, 420 U.S. 162, 172 (1975) (holding that the
"failure to observe procedures adequate to protect a
defendant's right not to be tried or convicted while
incompetent to stand trial deprives him of his due process
right to a fair trial.").
Rules of Criminal Procedure 3.210-3.212 establish the
procedures to be employed when there is a "reasonable
ground to believe that the defendant is not mentally
competent to proceed." Fla. R. Crim. P. 3.210(b). When
such reasonable grounds exist, the trial court must
immediately enter an order setting a hearing to be held
within twenty days to determine the defendant's mental
condition. The trial court may order the defendant to be
examined by no more than three experts. Id. The
expert or experts shall conduct a competency examination, and
shall consider and include in the competency report those
factors enumerated in rule 3.211(a)(2). The expert shall
submit a written report to the court, setting forth the
procedures, techniques, and tests used in the examination,
the observations and findings made, and opinions rendered, by
the expert, and the sources of information and factual bases
for the expert's clinical findings and opinions. Fla. R.
Crim. P. 3.211(c).
expert's report may then be considered by the trial court
at the competency hearing. In addition to the report or
reports, either party or the court may call the experts to
testify at the competency hearing, and any such expert is
deemed a court witness regardless of whether the expert is
called by a party or by the court. Fla. R. Crim. P. 3.212(a).
If the court finds the defendant competent to proceed, the
court shall enter its order so finding.
competency hearing in the instant case, no testimony was
taken and no evidence was offered. The parties merely
stipulated to the expert's written report; that is, the
parties agreed that, if called to testify at the hearing, the
expert would testify consistently with his written report.