       Third District Court of Appeal
                               State of Florida

                         Opinion filed November 8, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2883
                         Lower Tribunal No. 12-15201
                             ________________

                           Luis Fundora Moreno,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian,
Judge.

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

     Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney
General, for appellee.

Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.

      LUCK, J.

      Defendant Luis Fundora Moreno appeals the trial court’s finding that he was

competent to be sentenced for violating his community control. After a brief
competency hearing where the parties stipulated that the two doctors appointed to

evaluate Moreno would testify consistently with their written reports (both doctors

found Moreno competent), the trial court accepted the stipulation and made its

competency finding. Moreno contends the trial court erred by not making an

independent determination of Moreno’s competency, and abused its discretion by

failing to appoint a neuropsychologist. After review of the record and briefs, and

with the benefit of oral argument, we affirm the competency finding and sentence

although we remand for the limited purpose of having the trial court enter a written

competency order memorializing its oral ruling.

                     Factual Background and Procedural History

         The First Sentencing Hearing. In February 2014, Moreno was charged with

violating his community control by failing to complete a mental health evaluation;

failing to register for a domestic violence class; and failing to submit to a random

drug test. A few months later, in May, at the community control violation hearing,

Moreno asked the trial court to discharge his public defender so he could represent

himself. The trial court conducted a Faretta hearing,1 and after taking testimony

from Moreno and finding that he knowingly, voluntarily, and intelligently waived

his right to counsel, discharged the public defender, and continued with the hearing

with Moreno as his own counsel. At the end of the hearing, the trial court found


1   Faretta v. California, 422 U.S. 806 (1975).

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that Moreno willfully and substantially violated his community control. The trial

court then turned to sentencing. After hearing from the state, Moreno’s probation

officer, and Moreno, the trial court sentenced Moreno to twenty-one years in

prison, followed by two years of community control and thirteen years of

probation.

      The First Appeal. Moreno appealed, and we affirmed in part and reversed in

part. We affirmed the revocation of Moreno’s community control, but reversed the

sentence because the trial court did not offer Moreno the assistance of counsel

before the sentencing portion of the hearing as required by Florida Rule of

Criminal Procedure 3.111(d)(5). Moreno v. State, 167 So. 3d 522, 523 (Fla. 3d

DCA 2015) (confession of error). (Florida Rule of Criminal Procedure 3.111(d)(5)

provides that if a defendant, as here, waives his right to counsel, “the offer of

assistance of counsel shall be renewed by the court at each subsequent stage of the

proceedings at which the defendant appears without counsel.” That includes a

sentencing hearing.) We remanded “for the limited purpose of holding a new

sentencing hearing with an offer of counsel.” Id.

      The Competency Hearing.        On remand, with the public defender now

representing Moreno, Moreno’s counsel told the trial court there were reasonable

grounds to believe Moreno was not competent to proceed with the sentencing

hearing, and asked that doctors be appointed to evaluate his competency.2 The



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trial court granted the motion, appointed two doctors to evaluate Moreno, and reset

the case so the doctors had time to complete their evaluations. When the trial court

called back the case three weeks later, the doctors had evaluated Moreno and

submitted single-spaced five and nine page reports finding Moreno competent to

proceed.

      The state said it would stipulate that if the doctors were called to testify at

the hearing they would testify consistently with their reports. Moreno’s counsel

said that she assumed that’s what Moreno would want her to do, but she needed

time to talk with him to confirm. The trial court passed the case so counsel could

talk with Moreno. When the trial court recalled the case, counsel said that Moreno

would make the same stipulation. The trial court accepted the stipulation, and

found Moreno competent to proceed.

      The Second Sentencing Hearing. At the sentencing hearing six weeks later,

the trial court heard from the probation officer, Moreno’s son and wife, a

mitigation specialist at the public defender’s office, and Moreno. The trial court

said it considered the facts of the underlying convictions that caused Moreno to be

on community control, his community control violations, and the mitigation

evidence presented at the hearing, and sentenced Moreno to twenty-one years

imprisonment, followed by fifteen years of probation.

2 The trial judge on remand was not the same one who presided at the first
sentencing hearing.

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                                Standard of Review

      “A trial court’s decision regarding competency will stand absent a showing

of abuse of discretion.”    McCray v. State, 71 So. 3d 848, 862 (Fla. 2011)

(quotation omitted). That decision “does not constitute an abuse of discretion

unless no reasonable person would take the view adopted by the trial court.” Id.

(quotation omitted).

                                    Discussion

      Moreno contends the trial court: (1) erred by relying only on the expert

reports in finding him competent and not making an independent competency

determination, and (2) abused its discretion by failing to appoint a

neuropsychologist to evaluate him. The state responds that the record shows the

trial court made an independent determination of Moreno’s competency before

sentencing him, and Moreno’s counsel did not request that Moreno be evaluated by

a neuropsychiatrist. We address each of these issues below.

                   1. Independent Competency Determination

      A defendant is presumed sane when he enters the courtroom. Flowers v.

State, 353 So. 2d 1259, 1260 (Fla. 3d DCA 1978). But when there are reasonable

grounds to believe the defendant is not competent, the trial court must determine

whether the defendant “has sufficient present ability to consult with counsel with a

reasonable degree of rational understanding – and whether he has a rational as well



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as a factual understanding of the pending . . . proceedings.” Gore v. State, 24 So.

3d 1, 9 (Fla. 2009) (quoting Alston v. State, 894 So.2d 46, 54 (Fla. 2004)); see also

Fla. R. Crim. P. 3.211(a)(1) (setting forth the factors an expert must consider in

determining competency). This determination must be “an independent legal” one

“after considering the expert testimony or reports and other relevant factors.”

Shakes v. State, 185 So. 3d 679, 681 (Fla. 2d DCA 2016) (citing Dougherty v.

State, 149 So. 3d 672, 678 (Fla. 2014)). The experts’ written reports “are advisory

to the trial court, which itself retains the responsibility of the decision.” Dougherty,

149 So. 3d at 678 (quotations omitted). Moreno argues the trial court did not make

the required “independent competency determination” before the sentencing

hearing, and it erred in relying solely on the expert reports in finding Moreno

competent to proceed.

      Our review of the record shows otherwise. On September 25, 2015, the trial

court had an in-court conversation with Moreno about his last name. The trial

court spoke to Moreno again on October 14, 2015, when he had him sworn in, and

on the following day, when questioning Moreno about whether he wanted to

discharge the public defender. At the sentencing hearing, the trial court addressed

Moreno’s competency and said that the court had spoken with Moreno and found

him “to be intelligent, coherent, and alert.”       The trial court commented that

Moreno seemed “to understand everything” and it didn’t have reasonable grounds



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to be believe Moreno was not competent to proceed. The trial court observed and

heard Moreno testify at the sentencing hearing, and found him to be coherent, alert,

and logical. The trial court reiterated after hearing Moreno speak that it was

confident Moreno understood the proceedings.

      Taken together, the trial court made an independent determination of

Moreno’s competency. The trial court’s finding was based on its observations of,

and conversations with, Moreno at four hearings. While the trial court relied on

the experts’ reports in finding Moreno competent to proceed, as it was entitled to

do, id. at 677-78 (“[W]here the parties and the judge agree, the trial Court may

decide the issue of competency on the basis of the written report alone.” (quotation

omitted)), the court also explained that it found Moreno competent based on its

experiences with him during the previous hearings.

      The trial court’s competency finding was leagues apart from those that have

been reversed by the Florida courts.      In Dougherty, for example, the Florida

Supreme Court held the competency finding was insufficient because the trial

court relied solely on the defendant’s stipulation on the ultimate issue that he was

competent. See Dougherty, 149 So. 3d at 678 (“[A] defendant cannot stipulate that

he is competent, particularly where he has been previously adjudicated

incompetent during the same criminal proceedings.”).        In Shakes, the second

district found error because “[t]he trial court did not consider the testimony of any



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experts, and the trial court gave no indication that it had reviewed the report

submitted by the psychologist, which report was not specifically mentioned on the

record at any of the hearings in this case.” Shakes, 185 So. 3d at 681-82. The

second district also found error in Bylock v. State, 196 So. 3d 513 (Fla. 2d DCA

2016) because “there [was] no indication in the record that the parties agreed that

the trial court could rely on the reports deeming Bylock competent to proceed.” Id.

at 515. And in Harris v. State, 864 So. 2d 1252 (Fla. 5th DCA 2004), the trial

court failed to read or consider timely the experts’ reports, did not talk to the

defendant, did not have a competency hearing, and did not make a competency

finding. Id. at 1255.

      Here, unlike those cases, the trial court held a competency hearing; both

parties stipulated on the record that the doctors would testify consistently with their

reports; the trial court spoke to Moreno and observed his demeanor; the trial court

considered the doctors’ reports; and the trial court made a finding that Moreno was

competent to proceed. While brief, the competency hearing complied with the

procedural rules, and the trial court’s finding was supported by competent

substantial evidence. There was no error.

                            2. Neuropsychology Expert

      Moreno also contends the trial court abused its discretion when it failed to

appoint a neuropsychologist to conduct a competency evaluation.             We have



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combed the record and cannot find where Moreno made such a request. (Moreno’s

brief concedes that “defense counsel never formally requested the appointment of a

neuropsychologist.”) After Moreno’s counsel suggested Moreno was incompetent

to proceed and requested that two experts be appointed to evaluate him, the clerk

asked about appointing Dr. Fonte and Dr. Romero. The trial court asked: “Is that

fine with both of you?” Moreno’s counsel said, “That’s fine with me.” (The state

also agreed.) At the competency hearing, Moreno’s counsel stipulated that the

doctors would testify consistently with their reports. How could the trial court

abuse its discretion to appoint a neuropsychologist when there was no request for it

to exercise its discretion and there was a stipulation the trial court could rely on the

testimony of the two appointed doctors?

      Besides, when the issue of competency was raised again on the day of the

sentencing hearing, the trial court found no reasonable ground to believe that

Moreno was not competent, and that finding was supported by competent

substantial evidence. The trial court’s finding was based on its conversations with

Moreno on September 25, October 14, and October 15, 2015, and the doctors’

reports, which concluded that despite his head injury Moreno understood the

proceedings and could consult with counsel. The trial court reiterated after seeing

and hearing Moreno actively participate and testify at the sentencing hearing that




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Moreno understood the proceedings. The trial court did not abuse its discretion by

not appointing a third doctor to evaluate Moreno.

                                     Conclusion

      For these reasons, we affirm the trial court’s competency finding and its

sentence for Moreno’s violations of community control. Because the parties agree

the trial court did not memorialize its competency finding with a written order as

required by the rules of criminal procedure, Fla. R. Crim. P. 3.212(b) (“If the court

finds the defendant competent to proceed, the court shall enter its order so finding

and shall proceed.”); Gordon v. State, 219 So. 3d 189, 197 (Fla. 3d DCA 2017)

(“[T]he trial court made an oral finding that defendant was competent to proceed,

but failed to render a written order to that effect. This cause must be remanded to

the trial court to enter a written order consistent with its oral pronouncement.”), we

remand to the trial court for the sole purpose of entering a written order reflecting

its oral pronouncement regarding Moreno’s competency.             Because this is a

ministerial act, Moreno need not be present.

      Affirmed and remanded for entry of a written order.




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