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Aquino v. State

Florida Court of Appeals, Third District

November 13, 2019

Ignacio AQUINO, Jr., Appellant,
v.
The STATE of Florida, Appellee.

Page 526

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge. Lower Tribunal Nos. 08-20310, 10-000631.

          Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa and Shannon Hemmendinger, Assistant Public Defenders, for appellant.

          Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.

         Before LOGUE, SCALES and GORDO, JJ.

         SCALES, J.

         Ignacio 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 violations.

         I. Background

         In 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.

         In June 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.

         In 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

Page 527

Violation of Probation" seeking to revoke Aquino's probation based on these alleged new law violations.

         Before 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.[1] The trial court appointed two doctors. Both doctors examined Aquino in early May of 2017, and pronounced him competent to proceed in the probation revocation hearing.

         At a 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 therein.

         Approximately 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.[2] The revocation orders resulted in the trial court sentencing ...


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