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 Walton County. Kelvin C.
Thomas, Public Defender, and Justin F. Karpf, Assistant
Public Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Steven Woods, Assistant Attorney
General, Tallahassee, for Appellee.
Haley Bowden, appeals her convictions and sentences for
murder, burglary, and grand theft auto and argues that the
trial court erred in accepting her plea without holding a
competency hearing to determine that her competency had been
restored. For the reasons that follow, we agree with
Appellant and, therefore, reverse her convictions and
sentences and remand with instructions.
who was indicted in February 2013, was declared incompetent
to proceed in November 2014. In May 2015, the facility in
which Appellant had been a patient determined that she was
competent. In June 2015, the trial court appointed a third
expert for a competency evaluation. In October 2015,
Appellant pled nolo contendere to the charges. During the
plea hearing, the trial court stated, "[Appellant] at
one time was deemed incompetent to proceed on these charges.
She has been found by this court to be competent to
proceed." In November 2015, the State filed a Motion to
Declare the Defendant Competent, representing in part,
"After a search of records at the Clerk's office,
there appears no record of an order declaring [Appellant]
competent, despite the Court declaring [her] competent and
counsel for the State and Defense both asserting that [she]
has been and was competent following the release from the
[facility]." That same month, the trial court entered an
order granting the State's motion and declaring nunc pro
tunc that Appellant "is and has been competent to
proceed since May 6, 2015." In December 2015, a
different attorney from the Public Defender's Office
filed a Suggestion of Incompetency and Motion to Withdraw
Plea on Appellant's behalf, asserting in part that the
trial court did not conduct a competency hearing prior to
accepting Appellant's plea. After appointing conflict
counsel for Appellant, the trial court appointed two more
experts to evaluate her competency, both of whom found her
competent. In August 2016, the trial court entered an order
wherein it found that Appellant was competent to proceed to
sentencing based upon the experts' reports. This belated
defendant may not be tried and convicted of a crime if he or
she is not competent to stand trial. Gore v. State, 24
So.3d 1, 9 (Fla. 2009). In order to determine whether a
defendant is competent to proceed at trial or in
postconviction proceedings, a court must discern whether he
or she has the sufficient present ability to consult with
counsel with a reasonable degree of rational understanding
and whether he or she has a rational as well as a factual
understanding of the pending proceedings. Id. Once a
court has reasonable grounds to question a defendant's
competency, the court "has no choice but to conduct a
hearing to resolve the question." Zern v.
State, 191 So.3d 962, 964 (Fla. 1st DCA 2016). "At
the competency hearing, the court must make its own
independent finding of competency or incompetence."
Id. A court is not permitted to merely accept a
stipulation of competence even when all the experts have
opined that the defendant is competent. Id.; see
also Walker v. State, 237 So.3d 1162, 1165 (Fla. 1st DCA
2018) ("Once reasonable grounds existed, defense counsel
should have filed the evaluation reports in the record for
the benefit of the trial court and to facilitate appellate
review; and the trial court should have conducted a hearing
on the matter."); Sheheane v. State, 228 So.3d
1178, 1180 (Fla. 1st DCA 2017) ("Procedurally, once a
court has reasonable grounds to question a defendant's
mental health, it must hold a hearing."). In
the context of someone who has previously been declared
incompetent, the supreme court has explained that
"[g]enerally, a proper hearing to determine whether
competency has been restored after a period of incompetence
requires 'the calling of court-appointed expert witnesses
designated under Florida Rule of Criminal Procedure 3.211, a
determination of competence to proceed, and the entry of an
order finding competence.'" Dougherty v.
State, 149 So.3d 672, 677 (Fla. 2014) (quoting Jones
v. State, 125 So.3d 982, 983-84 (Fla. 4th DCA 2013)).
However, if the parties and the trial court agree, the court
may decide the issue of competency on the basis of written
reports alone. Id. at 677-78. The de novo standard
of review applies to the legal question of due process in
competency proceedings. Sheheane, 228 So.3d at 1179.
case, although the trial court entered an order in November
2015 declaring nunc pro tunc that Appellant had been
competent since May 2015, nothing in the record establishes
that a competency hearing was held at any point, either
before or after Appellant pled. In support of its argument
that such a hearing occurred, the State relies upon the
proffered testimony of the attorney who represented Appellant
when she pled that was taken during the hearing on the motion
to withdraw plea. The attorney testified that "the court
said yes [it received the report] and based on the reports
[it] found [Appellant] competent." However, such
testimony does not, in our opinion, show that a competency
hearing, to which Appellant was entitled, was conducted.
Although the trial court stated during the plea hearing that
Appellant "has been found by this Court to be competent
to proceed," it is unclear from the record when the
court made that determination or what that determination was
based upon. As such, reversal of Appellant's convictions
and sentences for a retroactive determination of competency
following a hearing is warranted. See Rosier v.
State, 1D16-2327, 2019 WL 2710739, at *4 (Fla. 1st DCA
June 28, 2019) (en banc) ("Had there been such a failure
[to conduct a competency hearing] here, precedent from this
Court would indeed support reversal."); Lewis v.
State, 190 So.3d 208, 209 (Fla. 1st DCA 2016)
("[B]ecause the trial court did not follow the required
procedures for declaring Appellant competent to proceed to
enter his plea and to be sentenced, Appellant's judgment
and sentence must be reversed.").
remand, if the trial court finds that Appellant was competent
at the time she entered her plea, it must again enter a nunc
pro tunc written order memorializing that finding with no
change in the judgment. See Walker, 237 So.3d at
1165 ("On remand, the trial court must conduct a hearing
to determine if Appellant had been evaluated appropriately
and deemed competent before the trial. If such evidence
exists, the trial court may enter an order finding Appellant
competent nunc pro tunc . . . ."). If the trial court
cannot make a retroactive determination, it must allow
Appellant to withdraw her plea and adjudicate her present
competency to proceed.
and Remanded ...