final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Jose L.
Fernandez, Judge. Lower Tribunal Nos. 08-20310, 10-000631.
J. Martinez, Public Defender, and Jeffrey Paul DeSousa and
Shannon Hemmendinger, Assistant Public Defenders, for
Moody, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee.
LOGUE, SCALES and GORDO, JJ.
Aquino, Jr. appeals two orders revoking his probation,
respectively, in lower tribunal case numbers F08-20310 and
F10-000631. As more fully described below, we remand to the
trial court either to make a nunc pro tunc
determination of Aquino's competence or to adjudicate
Aquino's current competence anew, and, if competent,
conduct a new hearing on Aquino's alleged probation
September 2008, Aquino entered a nolo contendere plea and was
found guilty of two, third-degree felony counts of child
abuse without great bodily harm (case number F08-20310). The
trial court withheld adjudication and sentenced him to six
years of probation.
2011, after Aquino entered another nolo contendere plea, the
trial court found Aquino guilty of grand theft in the first
degree, exploitation of the elderly, contracting without a
license, and resisting arrest without violence (case number
F10-000631). The trial court simultaneously revoked
Aquino's probation in case F08-20310 and sentenced
Aquino, in both F08-20310 and F10-000631 concurrently, to a
twenty-two-month prison term to be followed by three years of
probation. In the order of probation violation in F08-20310,
the trial court added the special condition that Aquino
should not have unsupervised contact with minor children.
2015, after Aquino had served the incarceration portion of
his sentence and while he remained on probation in F08-20310
and F10-000631, the State charged Aquino with new criminal
violations: lewd and lascivious molestation of a child
between the ages of twelve and sixteen, unsupervised contact
with a minor, and false imprisonment (case number F15-11935).
The State also filed a "3rd Amended Affidavit
Violation of Probation" seeking to revoke Aquino's
probation based on these alleged new law violations.
the probation revocation hearing occurred, though,
Aquino's counsel, during an April 26, 2017 hearing,
orally requested the trial court to order a competency
evaluation of Aquino. The trial court appointed two doctors.
Both doctors examined Aquino in early May of 2017, and
pronounced him competent to proceed in the probation
brief status hearing on May 10, 2017, attorneys for the State
and Aquino advised the trial court that they had received and
reviewed the two doctor evaluations of Aquino. The attorney
for the State advised the trial court that the doctors had
found Aquino competent to proceed; then, the attorney for the
State and Aquino's attorney both stipulated to the
doctors' competency determinations. There was no further
discussion about Aquino's competency at this hearing or
at any subsequent pre-revocation hearing. Importantly, the
trial court made no finding of competency; he merely accepted
counsel's stipulation as to the admissibility of the
doctors' reports and the competency conclusions contained
eleven months later, on March 29, 2018, the trial court
conducted the probation revocation hearing. At the conclusion
of this hearing, the trial court found by a preponderance of
the evidence that Aquino had violated his probation by
committing new law violations and entered the two orders on
appeal that revoked Aquino's probation in F08-20310 and
F10-000631. The revocation orders resulted in the
trial court sentencing ...