Roger N. Rosier, Appellant,
State of Florida, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Wakulla County. Dawn
Melissa Joy Ford, Assistant Regional Conflict Counsel, Office
of Criminal Conflict and Civil Regional Counsel, Tallahassee,
Moody, Attorney General; Trisha Meggs Pate, Tallahassee
Bureau Chief, Criminal Appeals; Samuel B. Steinberg and
Steven E. Woods, Assistant Attorneys General, Tallahassee,
ON MOTION FOR REHEARING, REHEARING EN BANC, AND
N. Rosier's judgment and sentence were reversed by a
panel of this Court on grounds that the competency hearing
conducted by the trial court was legally inadequate. See
Rosier v. State, 43 Fla.L.Weekly D2042 (Fla. 1st DCA
Sept. 5, 2018). The State moved for rehearing, rehearing en
banc, and clarification, asserting that the Court sua sponte
decided an issue not argued by Rosier. We grant the motion,
withdraw the panel opinion, and substitute the following in
appeals his conviction and sentence for resisting an officer
with violence. He argues that the trial court erred by: (1)
imposing a discretionary fine and surcharge without orally
pronouncing them, and (2) failing to conduct a competency
agree that the trial court erred when it imposed the
discretionary fine and surcharge under section 775.083,
Florida Statutes, without orally pronouncing them at
sentencing. Thus, the fine and surcharge must be stricken. We
affirm Rosier's judgment and sentence in all other
made only one argument related to competency in his initial
brief-that the trial court erred as a matter of law by
failing to conduct a competency hearing. Rosier's
specific argument was:
Mr. Rosier was committed to the Florida State Hospital after
the trial court found that he was incompetent to proceed on
October 7, 2013. After receiving a report recommending a
finding of competency, the trial court scheduled the hearing
required by Florida Rule of Criminal Procedure 3.212(c) for
July 9, 2014; however, the required hearing never occurred.
Subsequently, on August 14, 2014, a different circuit court
judge entered an order finding that Mr. Rosier was competent.
The controlling rules and case law cited above provide that a
competency hearing is required in this context. The trial
court erred as a matter of law by adjudging Mr. Rosier- who
had previously been adjudged incompetent- competent without
first holding a hearing.
after the initial brief was filed, the State sought and was
granted leave to supplement the record with the transcript of
the competency hearing conducted on August 14, 2014. After
being served with a transcript contradicting his claim that
no competency hearing occurred, Rosier did not seek to amend
the initial brief to clarify or supplement his arguments on
State then filed an answer brief, arguing that the transcript
of the competency hearing, the expert's report, and the
trial court's order refuted Rosier's argument that
the trial court failed to conduct a competency hearing. The
State contended that the record showed,
the trial court made an independent determination that Rosier
was competent and fully complied with the requirements
expressed in Dougherty v. State, 149 So.3d 672 (Fla.
2014), and Merriell v. State, 169 So.3d 1287 (Fla.
1st DCA 2015)[, ] by holding a hearing, making an independent
determination that Appellant was competent to proceed, and
entering a written order.
did not respond to the State's arguments. Rather than
file a reply brief, he filed a "Notice that Appellant
Will Not File a Reply Brief."
briefing, this Court delivered an opinion reversing
Rosier's judgment and sentence. The panel majority cast
Rosier's argument on appeal as one "challeng[ing]
the adequacy of the hearing at which it was determined that
his competency had been restored." Rosier, 43
Fla.L.Weekly at D2042. Holding that the competency hearing
was inadequate, the majority reversed and remanded for the
trial court to make a nunc pro tunc evaluation of
rehearing, the State points out that the only argument
presented in Rosier's initial brief was that the trial
court entered an order finding Rosier competent to proceed
without conducting a competency hearing. The State argues
that Rosier did not challenge the adequacy of the hearing.
Thus, the issue was waived, and the panel majority erred by
sua sponte raising and deciding the issue. In his response to
the rehearing motion, Rosier acknowledged that he failed to
raise the adequacy of the hearing in the initial brief but
argued that the issue was properly before the Court because
the State raised it in the answer brief, and Rosier's
initial-brief argument-that the trial court failed to hold a
competency hearing-necessarily included an argument that the
hearing was inadequate. We disagree and hold that Rosier
waived any argument on the adequacy of the competency hearing
when he failed to raise the issue in the initial brief.
appellate court is "not at liberty to address issues
that were not raised by the parties." Anheuser-Busch
Co., Inc. v. Staples, 125 So.3d 309, 312 (Fla. 1st DCA
2013). Nor may an appellate court "depart from its
dispassionate role and become an advocate by second guessing
counsel and advancing for him theories and defenses which
counsel either intentionally or unintentionally has chosen
not to mention." Polyglycoat Corp. v. Hirsch
Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983)
(on motion for rehearing); see also D.H. v. Adept Cmty.
Servs., Inc., 43 Fla.L.Weekly S533, S539 (Fla. Nov. 1,
2018) (Canady, C.J., dissenting) ("[I]t is not the role
of the appellate court to act as standby counsel for the
parties."). Instead, an appellate court must confine its
decision to the issues raised in the briefs. See Bainter
v. League of Women Voters of Fla., 150 So.3d 1115, 1126
(Fla. 2014) ("Basic principles of due process"-to
say nothing of professionalism and a long appellate
tradition-"suggest that courts should not consider
issues raised for the first time at oral argument" and
"ought not consider arguments outside the scope of the
briefing process.") (quoting Powell v. State,
120 So.3d 577, 591 (Fla. 1st DCA 2013))); Redditt v.
State, 84 So.2d 317, 320 (1955) ("The function of
an assignment of error is to point [to] the specific error
claimed to have been committed by the court below, in order
that the reviewing court and opposing counsel may see on what
point the appellant seeks reversal and to limit argument and
review to such point."); T.M.H. v. D.M.T., 79
So.3d 787, 827 (Fla. 5th DCA 2011) (Lawson, J., dissenting)
("Judicial restraint serves as the essential
self-imposed 'check' against the judicial
branch's abuse of power. . . ."). For an appellant
to raise an issue properly on appeal, he must raise it in the
initial brief. Otherwise, issues not raised in the initial
brief are considered waived or abandoned.See Hall v.
State, 823 So.2d 757, 763 (Fla. 2002) (finding
procedurally barred argument made in appellant's reply
brief that was not raised in the initial brief),
abrogated on other grounds by Norvil v. State, 191
So.3d 406 (Fla. 2016); City of Miami v. Steckloff,
111 So.2d 446, 447 (Fla. 1959) ("An assigned error will
be deemed to have been abandoned when it is completely
omitted from the briefs."); J.A.B. Enter. v.
Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992)
("[A]n issue not raised in an initial brief is deemed
abandoned and may not be raised for the first time in a reply
brief."); Philip J. Padovano, Waiver, 2 Fla. Prac., App.
Practice § 8:10 (2017 ed.) ("Failure to pursue the
argument on appeal or review is a waiver of the
fundamental principles of appellate review and judicial
restraint apply even when the defendant has been convicted of
a capital crime and sentenced to death. See Hoskins v.
State, 75 So.3d 250, 257 (Fla. 2011) (declining to
address a claim of ineffective assistance of counsel because
appellant raised the claim for the first time in the reply
brief); Simmons v. State, 934 So.2d 1100, 1117 n.14
(Fla. 2006) (declining to reach on direct appeal "any
arguments not expressly included in Simmons' brief to
this Court"); Coolen v. State, 696 So.2d 738,
742 n.2 (Fla. 1997) (finding waived on direct appeal a claim
of improper admission of the defendant's statements made
during a taped interview because the defendant failed to
brief fully and argue the issue); Johnson v. State,
660 So.2d 637, 645 (Fla. 1995) (reiterating on direct appeal
that "[t]he law is well settled that failure to raise an
available issue constitutes an admission that no error
occurred"); Duest v. Dugger, 555 So.2d 849,
851-52 (Fla. 1990) (finding waived in a postconviction appeal
any claims not fully argued in the appellant's initial
these principles here, we find Rosier waived any argument
that the competency hearing was inadequate. Williams v.
State, 932 So.2d 1233, 1237 (Fla. 1st DCA 2006)
(defining waiver as the "voluntary and intentional
relinquishment of a known right or conduct which implies the
voluntary and intentional relinquishment of a known
right"). In his initial brief, Rosier argued only that
the trial court failed to hold a competency hearing. Now on
rehearing, he argues, for the first time, that the hearing
was inadequate. Because Rosier did not challenge the adequacy
of the competency hearing in his initial brief, he may not
raise it now on rehearing. Coolen, 696 So.2d at 742
n.2; Anheuser-Busch, 125 So.3d at 312.
offers two reasons why his failure to brief the adequacy of
the hearing does not bar this Court from reviewing the issue.
First, he asserts that the issue was properly before the
Court because the State implicitly raised the issue in the
answer brief by arguing that the trial court made an
independent determination of Rosier's competency. Second,
Rosier argues that "[a] finding of competency following
an inadequate hearing is essentially the same error as a
finding of competency following no hearing at all."
reject both arguments. First, the State's arguments in
the answer brief assigned no new error for this Court to
review. Even after Rosier received the supplemental record
refuting his only argument on competency, Rosier did not seek
leave to file an amended brief. See In re J.W., 210
So.3d 147, 152 (Fla. 2d DCA 2016) (holding that appellant
waived issue not argued in her initial brief after she was
put on notice of the issue in the answer brief and "did
not move for leave to file an amended brief to address the
point"); Bilotti v. State, 27 So.3d 798, 800
(Fla. 2d DCA 2010) (holding that appellant waived issue
because he did not raise it in the initial brief, seek leave
to file a supplemental brief, or reply to the State's
Rosier's initial argument challenging the trial
court's failure to hold a competency hearing was
insufficient to preserve his argument on rehearing
challenging the adequacy of the hearing. I.R.C. v.
State, 968 So.2d 583, 588 (Fla. 2d DCA 2007)
(recognizing that an appellate court may "ordinarily
reverse only on the basis of the specific arguments presented
by the appellant"). Even when confronted with the
transcript of the hearing, Rosier did not file a reply brief
to respond to the arguments in the answer brief and to
clarify the argument made in his initial brief. We decline
the invitation to expand Rosier's lack-of-hearing
argument to incorporate his newly articulated
inadequate-hearing argument. See Fitchner v. Lifesouth
Cmty. Blood Ctrs., Inc., 88 So.3d 269, 278 (Fla. 1st DCA
2012) (explaining that Florida Rule of Appellate Procedure
9.330(a) expressly prohibits consideration of issues raised
for the first time in a motion for rehearing).
confine our review to the argument Rosier raised in the
initial brief-whether the trial court failed to conduct a
competency hearing. Had there been such a failure here,
precedent from this Court would indeed support reversal.
See Pearce v. State, 250 So.3d 791, 792-93 (Fla. 1st
DCA 2018); Robinson v. State, 250 So.3d 777, 778-79
(Fla. 1st DCA 2018); Francis v. State, 248 So.3d
263, 264-65 (Fla. 1st DCA 2018). But reversal is not required
here because the record clearly shows that the trial court
did conduct a hearing on Rosier's competency.
was committed to the Florida State Hospital after the trial
court determined that he was incompetent to proceed on
October 7, 2013. On June 27, 2014, the trial court received a
copy of the confidential evaluation report from the experts
at Florida State Hospital. The report found Rosier competent
to proceed. The report also included discharge instructions
suggesting that jail officials continue Rosier's
medication regime while Rosier awaited trial. The case
progress docket then reflects that a review hearing was
scheduled for August 13, 2014, with Judge Caloca-Johnson
review hearing, defense counsel alerted the court that Rosier
was returning from Florida State Hospital and that a
competency hearing should be scheduled. Defense counsel asked
that the hearing occur before the case was set for trial.
When the prosecutor suggested resolving the issue that day,
defense counsel stated that Rosier was not present and asked
for the competency hearing to be set for the next day, August
14, 2014. The following discussion occurred:
THE COURT: Yeah. So we've moved to[o] much around, in the
last twenty-four hours.
THE CLERK: How long is it going to take?
THE COURT: How long is it going to take, two seconds?
MS. JOHNSON: Judge, it won't - - it won't take more
than - - more than thirty seconds.
THE COURT: Okay.
MS. JOHNSON: We're stipulating that he's competent.
record reflects that the court reconvened the next day for a
hearing, defense counsel and Rosier stipulated to the expert
report's findings that Rosier was competent to proceed.
The trial court then conducted a colloquy of Rosier, during
which the court learned that Rosier believed that he was
doing "a lot better," that he was not taking any
psychotropic medications, and that he believed he was okay.
The trial court's written order, entered on the same day
as the hearing, provided:
THIS CAUSE having come before the Court on the report of
Leslie Dellenbarger, Psy.D. Senior Psychologist, Florida
State Hospital of June 19, 2014, that the Defendant is
competent to proceed, and the Court being fully advised in
the premises, it is hereby
ORDERED AND ADJUDGED:
1. The Defendant is currently competent to proceed to trial.
facts refute Rosier's argument that the trial court
failed to hold a hearing before entering the order finding
him competent to proceed. See Merriell, 169 So.3d at
1288 (affirming a finding of competency made during a status
hearing when the court specifically stated that it had read
the competency evaluations and that it found the appellant
competent to proceed). Because the record shows that the
trial court conducted a hearing to determine competence,
Rosier's sole argument on appeal fails. Apart from our
reversal of his sentence to address the imposition of the
fine and surcharge, Rosier's judgment and sentence is
Affirmed in part, Reversed in part, and Remanded for further
Thomas, C.J., and Lewis, Roberts, Wetherell, Ray, Osterhaus,
Kelsey, Winokur, Jay, and MK Thomas, JJ., concur.
J., concurs in result with opinion.
Winokur, J., concurs in an opinion joined by B.L. Thomas,
Thomas, J., concurs in an opinion joined by B.L. Thomas,
C.J., and Kelsey and Jay, JJ.
J., dissents in an opinion joined by Bilbrey, J.
Bilbrey, J., dissents in an opinion joined by Makar, J.
J., concurring in result.
concur in affirming the trial court's determination
regarding competency. Any alleged error in this case was not
sufficiently egregious to warrant this court reversing on an
issue not raised within appellant's brief.
error in this case, however, had been discovered by this
court during its normal review process that affected the
fundamental fairness of the criminal proceeding, we would be
required to order supplemental briefing and address the
error.Not addressing an error that goes to the
very fairness of a criminal proceeding is simply not an
option. I fully agree with the thoughts expressed by Judge
Cohen in his well-reasoned concurrence in Berben v.
State, 44 Fla.L.Weekly D962, 963 (Fla. 5th DCA Apr. 12,
2019), where he stated:
While the dissent correctly asserts that we have no duty to
undertake a fundamental error analysis, we do, however, have
a duty to ensure that justice is applied fairly and evenly.
E.g., Smith v. State, 521 So.2d 106, 108 (Fla. 1988)
(explaining that fundamental error should apply "where
the interests of justice present a compelling demand for its
application" (citing Ray v. State, 403 So.2d
956 (Fla. 1981)). It is also a well-established practice of
this Court to remedy fundamental errors on the face of the
record. E.g., Honaker v. State, 199 So.3d 1068, 1070
(Fla. 5th DCA 2016); Johnson v. State, 574 So.2d
222, 224 (Fla. 5th DCA 1991); Goss v. State, 398
So.2d 998, 999 (Fla. 5th DCA 1981). I agree that a finding of
reversible error that was neither preserved at the trial
level nor argued on appeal should be a rare circumstance;
this is that rare case. We cannot simply ignore the
fundamental sentencing error under the guise of
same can be said of non-sentencing errors that go to the very