FREDRICK C. TORRES, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Robert J. Egan,
S. Purdy, Public Defender, and Ailene S. Rogers, Assistant
Public Defender, Daytona Beach, for Appellant.
Moody, Attorney General, Tallahassee, and Bonnie Jean
Parrish, Assistant Attorney General, Daytona Beach, for
C. Torres appeals his judgment and sentence of life in prison
for attempted first-degree murder with a weapon after trial.
Torres raises two arguments. First, he contends that the
trial court erred in denying his motion for judgment of
acquittal. Based upon our examination of the trial transcript
and the standard of review that we must apply, we affirm on
this issue without further discussion. See Durousseau v.
State, 55 So.3d 543, 556 (Fla. 2010) ("A trial
court's denial of a motion for judgment of acquittal is
reviewed de novo to determine solely if the evidence is
legally sufficient." (citing Jones v.
State, 790 So.2d 1194, 1196-97 (Fla. 1st DCA
second argument for reversal is that the trial court
committed fundamental error when, after previously having
reasonable grounds to believe that Torres may be incompetent
to proceed,  it later found him to be competent based
solely on the stipulation of the parties. The State has
commendably conceded error. See Dougherty v. State,
149 So.3d 672, 678 (Fla. 2014) (holding that once the trial
court has reasonable grounds under Florida Rule of Criminal
Procedure 3.210 to believe that a defendant may not be
competent, a defendant cannot thereafter stipulate to his or
her own competency and the court, by accepting such a
stipulation, improperly absolves itself from making an
independent determination regarding a defendant's
competency to proceed).
requested in this appeal that this court remand his case back
to the trial court for that court to determine whether it can
make a competency determination nunc pro tunc to the time of
trial. See id. at 679 ("A new trial is not
always necessary where the issue of competency was
inadequately determined prior to trial; a retroactive
determination of competency is possible." (citing
Fowler v. State, 255 So.2d 513, 515 (Fla. 1971))).
The State agreed. Torres further reminded that if the trial
court finds either that he was not competent at the time of
trial or that it cannot make such a nunc pro tunc competency
determination, then it must vacate his judgment and sentence
and grant him a new trial, provided that he is now competent
to proceed to trial.
upon the State's concession, with which we agreed, we
relinquished jurisdiction to the trial court for a period of
forty-five days to conduct a hearing and for the entry of a
nunc pro tunc order as to Torres's competency or,
alternatively, to inform this court of its inability to make
such a determination. The trial court timely held this hearing,
at which Torres was present and represented by counsel. At
this hearing, Torres's counsel and the prosecutor agreed
that, in lieu of live testimony, the trial court could rely
upon the written reports of the experts in determining
Torres's competency, which the court did. See
Dougherty, 149 So.3d at 679 ("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.").
trial court entered a detailed written order finding Torres
competent to proceed nunc pro tunc to the date when it had
earlier found Torres competent by stipulation. The court,
which is the same court that had previously presided over
Torres's earlier proceedings below, including his trial
in 2017, also detailed in its order some of its earlier
interactions with and observations of Torres and further
found that Torres was competent up to and through his trial
and sentencing hearing. Because the trial court's nunc
pro tunc order finding Torres to be competent is supported by
competent substantial evidence and shows that it made an
independent determination as to his competency, we affirm the
judgment and sentence.
however, find it necessary to remand this case for the
correction of a clerical error. When first entered, the
judgment and sentence stated that Torres was convicted of
first-degree murder with a weapon, instead of
attempted first-degree murder with a weapon, as
determined by the jury. Torres timely filed a Florida Rule of
Criminal Procedure 3.800(b)(2) motion to correct this error.
The trial court granted the motion, but the corrected
sentencing documents inadvertently deleted "with a
weapon" from Torres's conviction for attempted
first-degree murder. Accordingly, we direct the trial court
to correct its present clerical error and to enter a second
amended judgment and sentence to show, consistent with the
jury's verdict and findings, that Torres was convicted of
attempted first-degree murder with a weapon, a life felony.
REMANDED with directions to correct clerical error.
EDWARDS, J., concurs.
EISNAUGLE, J., concurring in part ...