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Sylvestre v. State

Florida Court of Appeals, Fourth District

November 20, 2019

SYLVESTER SYLVESTRE, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan L. Alspector, Judge; L.T. Case No. 18-001533CF10A.

          Howard Finkelstein, Public Defender, and Lisa S. Lawlor, Assistant Public Defender, Fort Lauderdale, for petitioner.

          Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for respondent.

          PER CURIAM.

         The defendant in a pending criminal case petitions for certiorari review of an order that grants the State's request to have Defendant's third competency evaluation video-recorded. As no departure from the essential requirements of law is shown, we deny the petition.

         Background

         Defendant was arrested and charged with armed burglary of a dwelling, felony battery (prior conviction), and possession of cannabis. His attorney filed a motion to appoint experts to evaluate Defendant's competence to stand trial. The first two court-appointed experts reached differing conclusions: one opined that Defendant was incompetent, while the second believed Defendant was malingering. The trial court announced it would appoint a third expert to conduct an evaluation. The State subsequently filed a written motion seeking the court's permission to have the evaluation video-recorded.

         Defendant objected and, as discussed below, the trial court granted the State's request that the evaluation be video-recorded. In so doing, the court noted that the statutes, rules, and caselaw governing competency evaluations do not preclude video-recording.

         Defendant filed two written objections to the trial court order. The State filed a response. The trial court then heard legal arguments at a non-evidentiary hearing. The court noted that Florida Rule of Criminal Procedure 3.210(b) allows attorneys for the State and the defendant to be present during any court-ordered competency examinations. It rejected Defendant's objection to the video-recording, concluding that allowing video-recording was not materially different from the State's lawyer being present during the evaluation.

         The third competency evaluation of Defendant has been stayed pending our ruling on the instant petition.

         Analysis

         Certiorari lies when there is a departure from the essential requirements of law which will materially injure the petitioner and cannot be remedied adequately on appeal. Duckworth v. State, 923 So.2d 530, 533 (Fla. 4th DCA 2006). "The district courts should exercise [their] discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Combs v. State, 436 So.2d 93, 96 (Fla. 1983).

         The State has the right to a fair determination and meaningful opportunity to be heard as to a defendant's competence to proceed, and absent a showing of good cause by a defendant, the State has a right to have a competency evaluation by a court-appointed expert video-recorded. See Maraman v. State, 980 So.2d 1096, 1100-01 (Fla. 2d DCA 2008) (recognizing the right of a person subjected to compelled examination to have the examination recorded). Although Maraman involved the right of a defendant to videotape a compelled sanity evaluation by a State expert under rule 3.216(d), ...


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