                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

TUSH-EE LEWIS HUNTER,                 NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-0862

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 12, 2015.

An appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.

Christine Ann Guard, Special Assistant Public Defender, Tallahassee, for
Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, for Appellee.




MARSTILLER, J.

      Tush-ee Lewis Hunter appeals his convictions and sentences for robbery

with a deadly weapon and aggravated assault on a person 65 or older asserting the

following errors by the trial court: (1) failure to conduct a competency hearing and

enter a written order finding Hunter competent for trial after previously
adjudicating him incompetent to proceed; (2) failure to exclude from evidence the

substance of a 9-1-1 call that included double hearsay; and (3) failure to let the jury

find the enhancement factors required for sentencing a defendant as a Habitual

Violent Felony Offender (“HVFO”) and a Prison Releasee Reoffender (“PRR”).

We conclude the trial court committed no reversible error. Therefore, we affirm

Hunter’s convictions and sentences, but, as explained below, remand for entry of a

written order finding Hunter competent to stand trial.

      Hunter first asserts that the trial court failed to hold the mandatory hearing

under Florida Rule of Criminal Procedure 3.212(c) for a judicial competency

determination after receiving a report from the state hospital indicating Hunter,

previously adjudicated incompetent, had regained competency to proceed with

trial. Rule 3.212(c) provides, in pertinent part:


                    (5) [After a court orders commitment due to
             incompetency] . . . No later than 6 months from the date
             of admission, the administrator of the facility shall file
             with the court a report that shall address [the defendant’s
             competency]. If, at any time during the 6-month period .
             . . the administrator of the facility determines that the
             defendant no longer meets the criteria for commitment or
             has become competent to proceed, the administrator shall
             notify the court by such a report, with copies to all
             parties.
                    (6) The court shall hold a hearing within 30
             days of the receipt of any such report from the
             administrator of the facility on the issues raised thereby.
             If, following the hearing, the court determines that the
             defendant continues to be incompetent to proceed and
                                           2
            that the defendant meets the criteria for continued
            commitment or treatment, the court shall order continued
            commitment or treatment for a period not to exceed 1
            year. When the defendant is retained by the facility, the
            same procedure shall be repeated prior to the expiration
            of each additional 1-year period of extended
            commitment.
                  (7) If, at any time after such commitment, the
            court decides, after hearing, that the defendant is
            competent to proceed, it shall enter its order so finding
            and shall proceed.

(Emphasis added.) A trial court’s failure to follow this procedure and adjudicate a

defendant competent before moving on to the next material stage of the criminal

proceedings is reversible error. See Jackson v. State, 880 So. 2d 1241, 1242 (Fla.

1st DCA 2004); Samson v. State, 853 So. 2d 1116, 1117 (Fla. 4th DCA 2003).

“An individual adjudicated incompetent is presumed to remain incompetent until

adjudicated restored to competence.”         Samson, 853 So. 2d at 1116 (citing

Alexander v. State, 380 So. 2d 1188, 1189 (Fla. 5th DCA 1980)). And “a criminal

prosecution may not move forward at any material stage of a criminal proceeding

against a defendant who is incompetent to proceed.” Caraballo v. State, 39 So. 3d

1234, 1252 (Fla. 2010).

      It is not entirely clear from the record before us that the trial court indeed

failed to hold the required hearing or find Hunter competent to be tried. The

competency hearing was specifically noticed for July 23, 2012, and it took place,

but the court made no determination because defense counsel sought psychiatric

                                         3
reevaluation of Hunter—which the court permitted—primarily to address whether

he was insane at the time of the charged offenses. At the time of the hearing, the

court had reports from two forensic mental health specialists deeming Hunter

competent to stand trial. Subsequently, at an August 16, 2012, status conference,

defense counsel stated affirmatively, “[Hunter is] competent to proceed for

competency but he still could be insane at the time, today.” The court replied,

“Okay,” and defense counsel requested a further continuance to do more research

on whether a defendant can be insane yet competent to stand trial.

      We dealt with a somewhat similar scenario in Martinez v. State, 851 So. 2d

832 (Fla. 1st DCA 2003).          There, the defendant, previously adjudicated

incompetent, was deemed restored to competency by mental institution staff. Id. at

833. Apparently at the outset of a plea hearing, defense counsel represented to the

trial court that two doctors had concluded the defendant was competent to proceed,

to which the judge responded, “All right, sir,” and went on to accept the

defendant’s guilty plea and sentence him. Id. at 834. We construed the judge’s

response, under the circumstances, as an oral determination of competency,

notwithstanding that a hearing on the matter had not occurred. Id.

      Similarly, here, we construe the trial court’s affirmative response to defense

counsel’s representation at the August 16, 2012, status conference as an oral

determination of Hunter’s competency. Unlike the scenario in Martinez, the trial

                                         4
court in this case did schedule and convene a competency hearing, and, on the

record, did consider the two reports from the forensic mental health specialists

concluding that Hunter’s competency was restored. Moreover, the progress docket

in the record indicates several more continuances after the August 16, 2012, status

conference, at which point it is clear defense counsel’s focus was on having Hunter

declared insane. According to the docket, a hearing occurred on September 28,

2012. Strangely, that hearing was not recorded; consequently, there is no transcript

in the record. But subsequent docket entries and filings in the record show that the

usual trial preparation activity ensued and, ultimately, the trial itself was held in

December 2012. Thus, the record before us indicates the trial court did determine

Hunter was competent to go to trial. “[W]e will not presume that the court acted

contrary to the dictates of the law by declining to make such a finding once it was

aware of the prior adjudication of incompetency.” Martinez, 851 So. 2d at 835.

      Nevertheless, the record decidedly lacks a written order from the trial court

adjudicating Hunter competent for trial, as required by rule 3.212(c)(7). As we did

in Martinez, we simply remand to the trial court to enter the needed written

adjudication nunc pro tunc. See id., at 834; see also Powell v. State, 28 So. 3d 958,

958 (Fla. 1st DCA 2010); Bailey v. State, 931 So. 2d 224, 225 (Fla. 1st DCA

2006); White v. State, 548 So. 2d 765, 768 (Fla. 1st DCA 1989); Hampton v. State,

988 So. 2d 103, 106 (Fla. 2d DCA 2008).

                                         5
      Hunter next argues that the trial court abused its discretion in admitting the

recording of a 9-1-1 call which, although redacted in part before being played for

the jury, was tainted by double hearsay. State’s witness Alex Taylor testified he

made the call immediately upon seeing two men chasing a third knife-wielding

man, yelling they had just been robbed, and telling Taylor to call 9-1-1. On the

stand, Taylor described who and what he saw the night in question, and stated that

he had been accompanied at the time by a Mr. Thompson.

      The trial court admitted the recording under the excited utterance hearsay

exception, see section 90.803(2), Florida Statutes—a ruling Hunter does not

challenge in whole. Rather, Hunter argues that certain of Mr. Taylor’s statements

to the 9-1-1 operator were based on information fed to him by Mr. Thompson, who

was unavailable for trial and whose statements could not be established as excited

utterances.

      In the unredacted recording of Mr. Taylor’s 9-1-1 call, Mr. Thompson is the

unidentified speaker:

              Q.  Police department, where is your emergency?
              A.  I’m here at Fort Walton Temple Mound.
              Q.  The Indian Temple Mound?
              A.  Yeah.
              Q.  Okay. What’s going on there?
              A.  I just witnessed a robbery (inaudible).
              Q.  Okay. What does the guy look like?
              A.  Okay. The guy was kind of heavy set, short dude. He was
                  about 5’6, 5’7, 5’8.
              UNIDENTIFIED SPEAKER: Long hair.
                                         6
             Q.   Was he black or white?
             A.   He was white. What color was his hair?
             UNIDENTIFIED SPEAKER: Black hair.
             A.   He had dark hair.
             UNIDENTIFIED SPEAKER: Black backpack.
             A.  Black backpack. He had a tattoo on his arm, and he’s
                 wearing a green shirt and shorts.
             Q.  A green shirt and shorts?
             A.  Yeah. His shorts weren’t green, sorry.
             Q.  What color were the shorts?
             A.   His shorts were black.
             Q.  And he had a tattoo on what arm?
             A.  He had a tattoo on his right arm (inaudible).
             UNIDENTIFIED SPEAKER: (Inaudible.)

The call continued to conclusion with only Taylor and the 9-1-1 operator speaking.

At trial, the court permitted the State to play the recording for the jury with only

the statements of the unidentified speaker redacted.

      “A trial court’s decision to admit evidence is reviewed for abuse of

discretion, subject, of course, to the rules of evidence and case law.” Hunter v.

Aurora Loan Services, LLC, 137 So. 3d 570, 572 (Fla. 1st DCA 2014) (citing

Gregory v. State, 118 So. 3d 770, 780 (Fla. 2013)). Under the Florida Evidence

Code, “[h]earsay within hearsay is not excluded under s. 90.802, provided each

part of the combined statements conforms with an exception to the hearsay rule as

provided in s. 90.803 or s. 90.804.” § 90.805, Fla. Stat. (2012). Hunter correctly

characterizes those of Mr. Taylor’s statements conveying information from the

unidentified speaker as inadmissible hearsay within hearsay. See, e.g., Smith v.

State, 880 So. 2d 730, 741 (Fla. 2d DCA 2004) (holding recorded statements of
                                         7
eyewitnesses to a shooting relaying the shooter’s alleged statements constituted

hearsay within hearsay and were inadmissible absent predicate showing shooter’s

and eyewitnesses’ statements independently satisfied a hearsay exception).

      However, we find the trial court’s error harmless. The offending statements

by Mr. Taylor were, “He had dark hair” and “Black backpack.” The information

about the perpetrator having a black backpack was merely cumulative to Mr.

Taylor’s and the victim’s son’s testimony that the perpetrator had a backpack.

Furthermore, neither the color of the perpetrator’s backpack nor the color of the

perpetrator’s hair was crucial to identifying Hunter as the perpetrator. Rather,

throughout the trial, the identification largely turned on the nature and location of

the perpetrator’s “Semper Fi” arm tattoo. Moreover, the victim’s son identified

Appellant from a photo lineup prior to trial and identified Appellant in court.

Therefore, we conclude there is no reasonable possibility that admission of Mr.

Taylor’s two offending statements affected the jury’s verdict.         See State v.

DiGiulio, 491 So. 2d 1129, 1139 (Fla. 1986).

      Finally, Hunter argues that under Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151 (2013), the trial could not impose enhanced HVFO and PRR sentences

without requiring the State to prove up the enhancement factors to the jury. But

“[t]he touchstone for determining whether a fact must be found by a jury beyond a

reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the

                                         8
charged offense.” Alleyne, ___ U.S. at ___, 133 S.Ct. at 2158 (emphasis added).

For this reason, we have held that Alleyne does not apply to PRR sentencing

because the key pertinent fact—whether the defendant committed the charged

offense within three years of being released from prison—is not an element or

ingredient of the charged offense. 1 Williams v. State, 143 So. 3d 423, 424 (Fla. 1st

DCA 2014), rev. denied, ___ So. 3d ___, 2014 WL 6977641 (Fla. Dec. 9, 2014).

The same reasoning applies to HVFO sentencing, where the key pertinent fact is

whether the defendant has a prior conviction for one of the felonies enumerated in

section 775.084(1)(b)1., Florida Statutes. See Apprendi v. New Jersey, 530 U.S.

466, 490 (2000) (holding “Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.”) (emphasis added);

Luton v. State, 934 So. 2d 7, 9-10 (Fla. 3d DCA 2006); McBride v. State, 884 So.

2d 476, 478 (Fla. 4th DCA 2004). Accordingly, we hold Alleyne does not apply to

HVFO sentencing.

         AFFIRMED; REMANDED with directions.



LEWIS, C.J., CONCURS; BENTON, J., DISSENTS WITH OPINION.




1
    Our decision in Williams was published after briefing concluded in this case.
                                          9
BENTON, J., dissenting.

      “In order to proceed against a defendant who has been adjudicated

incompetent, the trial court first must hold a hearing to determine whether the

defendant’s competency has been restored, review evidence from experts during

the hearing, make an independent determination that the defendant’s competency

has been restored, and enter a written order to that effect.” Ross v. State, 155 So.

3d 1259, 1259 (Fla. 1st DCA 2015). “If, at any time after . . . commitment [for

treatment to restore a defendant’s competence to proceed], the court decides, after

hearing, that the defendant is competent to proceed, it shall enter its order so

finding and shall proceed.” Fla. R. Crim. P. 3.212(c)(7). But not otherwise. In the

present case, the trial court never took testimony, never received any written report

in evidence, and never determined whether the defendant was competent to

proceed. Accordingly, I respectfully dissent.

      Mr. Hunter had been adjudicated incompetent to proceed in January of 2012,

and committed at that time for treatment to restore competence. A competency

evaluation report, prepared on June 18, 2012, catalogued hospitalizations for

psychiatric reasons beginning at age fourteen, including an admission to Florida

State Hospital after being adjudicated not guilty by reason of insanity on an earlier

criminal charge. The report also noted numerous suicide attempts, and that he had

cut himself nine times during his current commitment. (His conduct resulted in

                                         10
special supervision by at least one and sometimes two staff members “at all times .

. . over the past four months,” and in his inability to attend classes or group

therapy. He was instead provided individual therapy by a “Psychology Intern.”)

The competency evaluation report was attached to a letter the Department of

Children and Families sent to the trial court, also in June of 2012, indicating he

was competent to proceed.2

      Relying in part on the fact that a competency hearing was noticed for July

23, 2012, the majority opinion concludes that a competency hearing actually took

place on that date, 3 although it acknowledges that the trial court “made no

determination” of competence because defense counsel sought reevaluation of Mr.

Hunter. At the July 23, 2012 hearing, defense counsel clearly stated there was

“still a question about sanity, sanity at the time, and sanity now.” Defense counsel

requested that Mr. Hunter be evaluated both as to insanity at the time of the offense

and as to insanity or incompetence “at the present time.” After a brief discussion

      2
         The trial court observed: “One thing that was interesting is that, I read
through the report, and I saw different findings in there. But I didn’t see the strong
language that there was in the cover letter that was done by the staff assistant, not
the same doctor. The staff assistant says, competent to proceed, no longer meets
criteria. But unless I just overlooked it, I didn’t see that in the report. I saw again,
a lot of different findings but I never saw a real firm conclusion. But again, it was
a lot of pages and I may have missed it.”
       3
          The trial court docket entry for July 23, 2012, indicates the following:
“COURT RESULT: HEARING HELD;” “EVALUATION TO BE PERFORMED
TO DETERMINE SANITY AT TIME OF OFFENSE;” “CALENDAR STATUS
DATE SET FOR 08/03/2012;” “DOCKET DAY FELONY SET FOR
08/16/2012;” and “CRIMINAL JURY TRIAL FELONY SET FOR 08/20/2012.”
                                           11
regarding “who pays” for an evaluation, defense counsel stated “he’s insane at this

time. I was told that was a possibility.” No ruling on competence to proceed was

made on July 23, 2012, however.

      On August 16, 2012, a short hearing or status conference was held.4 At the

start of this proceeding, the following exchange occurred:

             MR. HILLEY: Judge, I got another letter from Mr. Barnes, that
      inside medical isolation, he’s inside the isolation of the isolation
      because I came down to see him and he was strapped down because
      he tried to kill himself again.
             I couldn’t see him the other day. There’s indication, my motion
      for – he was insanity (sic) at the time – but I’ve been talking with Mr.
      Barnes. I think he’s competent to proceed and I’ve never heard of
      this before and I’m trying to do research on it, Judge.
             He’s competent to proceed for competency but he still could be
      insane at the time, today.
             THE COURT: Okay.
             MR. HILLEY: And can I file, I guess I would file a motion to
      ask for an insanity, presently, if the State was going to object or I can
      just put the order in. I mean, that has no bearing on it.
             MR. REED: Proceed, Judge. I think if he wants to do
      something like that just for your own knowledge, you’d have to pay
      for it yourself. I don’t think the JAC is going to pay for something
      like that.
             MR. HILLEY: If he’s insane right now then he can’t be tried.[5]

      4
         There were two docket entries between July 23 and August 16, 2012. The
trial court docket entry for August 3, 2012, states only “COURT RESULT:
HEARING HELD.” The trial court docket entry for August 15, 2012, indicates:
“CORRESPONDENCE TO THE COURT FROM FORENSIC MENTAL
HEALTH SPECIALIST RE: BEHAVIOR (NON PUBLIC)” and “MOTION FOR
RE-PSYCHOLOGICAL EVALUATION AND APPOINTMENT OF EXPERT
WITNESS.”
       5
         The transcript continues:

                   MR. REED: No, it’s incompetent, right now or
                                   12
Defense counsel’s statement that Mr. Hunter was “competent to proceed for

competency” was not a stipulation or concession that Mr. Hunter was competent to

            insane at the time of the offense. It’s two different –
                   MR. HILLEY: No, those are the procedurally.
            We’ve never had one insane, right now in competency.
            I’m trying to do the research, Judge, and – and cause it’s
            just I’ve never had that ever.
                   MR. REED: Well, if you could set this for a
            hearing, Judge, so –
                   MR. HILLEY: We do have the order – it’s either
            to you or it’s on the way to you.
                   THE COURT: You got a motion that’s coming to
            me?
                   MR. HILLEY: No. The order for the insanity at
            the time.
                   THE COURT: Okay.
                   MR. HILLEY: And he’s not objecting to that.
                   MR. REED: No, we’re not objecting to that,
            Judge. It’s insanity, currently.
                   THE COURT: Right.
                   MR. HILLEY: And I’ve never had that insane
            now but competency. But –
                   THE COURT: Okay. So what do you want to do?
                   MR. HILLEY: We want to continue it, Judge. . . .
            We have the order for the insanity at the time and then
            I’m going to do the research and see if there is, how do I
            approach that now. I’ll give it to the State if there’s some
            case law on it, we’ll just send an order over to have him
            evaluated for insanity now if it hasn’t any bearing.
                   If my research says it doesn’t have any bearing,
            I’m going to – I’ll just announce it that my research
            shows that we’re going to have to proceed with trial.
                   THE COURT: Okay. So we’ll just set it for a
            status, is that right?

    The trial court’s docket entry for August 16, 2012, indicates: “COURT
RESULT: CONTINUED” and “STATUS CALL DATE SET FOR 08/29/2012.”

                                        13
assist in his defense or to enter a plea.

      The trial court’s interjection in response, “Okay,” (which was immediately

followed by defense counsel’s stating he “would file a motion to ask for an

insanity, presently, if the State was going to object”) cannot fairly be construed as

a finding that Mr. Hunter was competent to stand trial. Cf. Boone v. State, 805 So.

2d 1040, 1041 (Fla. 4th DCA 2002) (remanding to the trial court for entry of a

written order where the “trial court clearly announced its finding that Boone was

competent to stand trial” but failed to enter a written order). Indeed, the trial court

began seven of his twenty-one utterances 6 on August 16, 2012, with the word

“Okay.”

      Nor does the record of the status conference or hearing reflect any basis for a

finding that Mr. Hunter was competent to proceed. As our supreme court has

recently explained:

                Generally, a proper hearing to determine whether
             competency has been restored after a period of
             incompetence requires “the calling of court-appointed
             expert witnesses designated under Florida Rule of
             Criminal Procedure 3.211, a determination of
             competence to proceed, and the entry of an order finding
             competence.” . . . “[W]here the parties and the judge
             agree, the trial [c]ourt may decide the issue of
             competency on the basis of the written reports alone.”
             Nevertheless, these written reports are advisory to the

      6
        “Okay” was the trial court’s complete statement on four of these seven
occasions, including the occasion to which the majority opinion refers.
Additionally, the trial court concluded two other statements with “Okay.”
                                          14
            trial court, “which itself retains the responsibility of the
            decision.” Accepting a stipulation improperly absolves
            the trial court from making an independent determination
            regarding a defendant’s competency to stand trial.
                We note that our prior cases, in which we held that the
            trial court retains the responsibility to determine if the
            defendant is competent, generally involved conflicting
            testimony or evidence regarding a defendant’s
            competency. However, nothing in our precedent or the
            State’s argument persuades us that a defendant can
            stipulate to the ultimate issue of competency, even where
            the written reports reach the same conclusion. Even in a
            situation where all the experts opine that a defendant is
            competent, the trial court could presumably disagree
            based on other evidence such as the defendant’s
            courtroom behavior or attorney representations. Further,
            the language of rule 3.212(c)(7) and rule 3.212(b)
            discussed above does not allow parties to stipulate to the
            issue of competency. In particular, the rules do not
            contemplate such stipulations where the trial court has
            previously concluded that a particular defendant is
            incompetent and his competency has yet to be restored.
            Thus, based on our precedent and the procedural rules for
            competency determinations, a defendant cannot stipulate
            that he is competent, particularly where he has been
            previously adjudicated incompetent during the same
            criminal proceedings. Further, if a trial court finds that a
            defendant is competent to proceed, it must enter a written
            order so finding.

Dougherty v. State, 149 So. 3d 672, 677 (Fla. 2014) (citations omitted) (footnotes

omitted). See also Macaluso v. State, 12 So. 3d 914, 915 (Fla. 4th DCA 2009) (“If

the Rule wanted lawyers to be able to stipulate to restored competency without an

evidentiary hearing, it would have so stated in explicit terms.”), approved by

Dougherty, 149 So. 3d at 679.

                                        15
      “These requirements [including the review of ‘evidence from experts during’

a competency hearing] cannot be waived by a stipulation. Because there is no

evidence in the record that the trial court conducted a competency hearing,

reviewed evidence from any examining physicians, or made an oral or written

finding that appellant had been restored to competence, appellant was presumed

incompetent to proceed at any material stage, rendering his plea [here trial and

conviction] invalid as a matter of law and subject to challenge for the first time on

direct appeal.” Ross, 155 So. 3d at 1259-60 (citations omitted). In the present

case, even if the trial court’s “Okay” could be deemed acceptance of some (in fact

nonexistent) stipulation by defense counsel, it would be legally insufficient.

Dougherty, 149 So. 3d at 678.7

      The trial court did not make “an independent determination regarding [Mr.

Hunter’s] competency to stand trial.” Id. Although there was a brief reference to


      7
          The majority opinion’s reliance on Martinez v. State, 851 So. 2d 832 (Fla.
1st DCA 2003), is misplaced. There, we addressed only the defendant’s contention
that the trial court erred in failing to enter a written order finding him competent to
proceed. Id. at 833-34 (concluding that “the pertinent provisions of the [Criminal
Appeal Reform Act of 1996 did not] dispossess this court from jurisdiction to
remand to the trial court for the sole purpose of memorializing in writing an oral
finding made by the court” and that “[n]either the defendant nor the state has
contended on appeal that” the trial court’s statement, “All right, sir,” after defense
counsel informed the court that two doctors had concluded the defendant was
competent to proceed, “was anything less than a finding of competency”). In
addition, after Dougherty v. State, 149 So. 3d 672 (Fla. 2014), a stipulation is
inadequate to support such a finding.

                                          16
the competency evaluation report during the July 23, 2012 hearing, there was no

stipulation (during either the July 23, 2012 hearing or the August 16, 2012 hearing)

that the trial court could rule on the question of competency to proceed based on a

written report alone. In fact, there is no indication in the transcript of either

hearing that any written report was ever offered or admitted into evidence.

      In S.B. v. State, 134 So. 3d 528, 529 (Fla. 4th DCA 2014), defense counsel

and the state stipulated to the defendant’s competency, but there was no stipulation

to the contents or to the admission of the doctor’s report for the determination of

competency. Nor was there any agreement to decide the issue of competency on

the basis of written report(s) alone. Without further hearing or evidence, the trial

court entered a written order finding that the defendant was competent to proceed.

The Fourth District reversed: “Although it can be argued that by stipulating to the

report’s determination of competency, the parties stipulated to the report and

agreed to determine competency based on the report alone, there is nothing in the

case law to suggest that such implicit stipulations and agreements are sufficient to

satisfy rule 3.212. Therefore, the trial court erred in its finding of Defendant’s

competency.” Id. at 530 (citations omitted).

      In Macaluso, 12 So. 3d at 915, as here, the defendant was adjudicated

incompetent to stand trial and committed for treatment to restore competence. At a

hearing conducted five months later, his attorney advised the court that he had

                                        17
since been found competent based on evaluations that were obtained by the Public

Defender’s Office. The trial court thereupon declared the defendant competent to

stand trial, “[w]ithout further hearing or evidence.”      Id.   The Fourth District

reversed, concluding “the competency issue was improperly decided” and stating

the case was “returned to its status before the trial judge spontaneously declared

defendant competent without hearing or evidence.” Id. See also Roman v. State,

40 Fla. L. Weekly D421, D422 (Fla. 2d DCA Feb. 13, 2015) (noting, in reversing

convictions entered after the defendant was adjudicated incompetent to proceed,

that “the parties did not stipulate to have the trial court decide Roman’s

competency on the basis of experts’ reports”).

      It is “entirely clear” from the record before this court that the trial court did

not make the requisite determination of Mr. Hunter’s competency. See Dougherty,

149 So. 3d at 676 (“In Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43

L.Ed.2d 103 (1975), the United States Supreme Court recognized that ‘the failure

to observe procedures adequate to protect a defendant’s right not to be tried or

convicted while incompetent to stand trial deprives him of his due process right to

a fair trial.’”); State v. Tait, 387 So. 2d 338, 341 (Fla. 1980) (same). Because the

trial judge never conducted a true competency hearing, and never made a

determination that Mr. Hunter was competent to proceed, Mr. Hunter remained

incompetent to proceed, as a matter of law.

                                         18
     The conviction and sentence should be reversed, and the case should be

remanded for a new trial once it is determined that the defendant has regained

competency to proceed.




                                     19
