            DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                     FOURTH DISTRICT

                                   RAYMOND HANNA,
                                      Appellant,

                                              v.

                                  STATE OF FLORIDA,
                                       Appellee.

                                       No. 4D16-770

                                     [October 4, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 13-014526-
CF10A.

  Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Senior Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    Appellant, Raymond Hanna, appeals his judgment and sentence after
a jury found him guilty of grand theft and simulation of legal process.
Hanna contends the trial court erred by: (1) finding him competent to
proceed based on a stipulation, and (2) not conducting a proper Faretta 1
determination, and failing to renew an offer of counsel thereafter. We
affirm as to the Faretta issue, without discussion; however, we agree with
Hanna that the order finding him competent was erroneous, and reverse.

                                        Background

   Hanna was charged with grand theft and simulation of legal process
based on an allegation that he placed a false lien on real property. In
December 2013, the trial court entered an order finding Hanna
incompetent, and the case was transferred to the trial court’s mental
health division with the Department of Children and Families to provide

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

   After several orders appointing experts to reevaluate competency, a
hearing was held in June 2015, to discuss the most recent evaluation,
which is the operative evaluation for purposes of this appeal. The
discussion regarding the evaluation and competency was as follows:

      [State]: That’s great. And I see [the evaluator] giving that opine
      that he’s competent. So, I will, on [the assigned ASA]’s behalf,
      stipulate to that.

      The Court: Did you want to stipulate to that?

      [Hanna’s Attorney]: Your Honor, I know that you might not be
      able to address this, while I’m stipulating, but Mr. Hanna was
      again – I think you remember last time – desirous of
      discussing whether or not he could leave for –

      The Court: He wants to work.

      [Hanna’s Attorney]: - the purpose of working.

      ....

      [Hanna’s Attorney]: Okay. Then we’ll stipulate to competency,
      Your Honor.

      The Court: Okay. So, there’s a stipulation that he’s competent
      to proceed. Are we able to resolve the case? Keep it [in mental
      health court]?

      ....

      The Court: This is a – This is a big deal that we have this
      finding now. There’s a stipulation. There’s some movement in
      the case.

The trial court then stated: “So, there’s a finding of competence,” and
entered a written order finding Hanna competent.

   Subsequently, Hanna proceeded to a jury trial in which he was found
guilty as charged and was sentenced to concurrent prison terms. After
being sentenced, Hanna gave notice of appeal.


                                      2
                              Appellate Analysis

   “We review a trial court’s decision regarding competency for an abuse
of discretion, but questions of statutory interpretation are reviewed de
novo.” B.R.C. v. State, 210 So. 3d 243, 244 (Fla. 2d DCA 2017) (citing State
v. D.V., 111 So. 3d 234, 236 (Fla. 4th DCA 2013)).

   “The parties may stipulate to deciding competency based on the written
reports rather than live expert testimony, but the defendant and the other
parties may not stipulate to competency itself, particularly when the
defendant was previously adjudicated incompetent, as the trial court must
make an independent determination on the issue.” Rumph v. State, 217
So. 3d 1092, 1095 (Fla. 5th DCA 2017) (citing Dougherty v. State, 149 So.
3d 672, 678 (Fla. 2014)); see also Deferrell v. State, 199 So. 3d 1056, 1061
(Fla. 4th DCA 2016) (quoting Williams v. State, 169 So. 3d 221, 223 (Fla.
2d DCA 2015)) (“[A] defendant may not waive his or her right to a
competency hearing even if the experts unanimously find the defendant
competent to proceed.”).

    Hanna argues that the trial court improperly accepted his stipulation
to competency by a written order finding him competent. The State argues
that Hanna did not stipulate to competency, but instead, argues that
Hanna stipulated to the evaluation, and the trial court made an
independent finding of competency.

   The State cites to Rumph, where the Fifth District discussed the
distinction between stipulating to a competency evaluation and stipulating
to competency:

      The parties may stipulate to deciding competency based on
      the written expert reports rather than live expert testimony,
      but the defendant and the other parties may not stipulate to
      competency itself, particularly when the defendant was
      previously adjudicated incompetent, as the trial court must
      make an independent determination on the issue.

Rumph, 217 So. 3d at 1095 (citing Dougherty, 149 So. 3d at 678).
Additionally, “[t]he stipulation to determining the issue based on the
expert’s written reports may be inferred from the context.” Id. (emphasis
added).

   However, in S.B. v. State, 134 So. 3d 528 (Fla. 4th DCA 2014), we
reviewed a case with very similar facts, and reversed the finding of


                                     3
competency. Id. at 529. There, three years after a defendant had been
found incompetent, the trial court again revisited competency as follows:

      “[Defendant] was evaluated by [a doctor]. I just reviewed the—
      thanks to the State, their copy of the report. And based on
      that my conversation with [Defendant] and the mother, we are
      going ahead and stipulate that the child is competent to
      proceed today.” The State also stipulated to Defendant’s
      competency, but there was no stipulation to the contents and
      admission of the doctor’s report for the determination of
      competency.

      Without further hearing or evidence, the court entered a
      written order finding that Defendant was competent, based
      solely upon the stipulations by the State and defense, and its
      own review of the doctor’s report.

Id. (alterations in original). S.B. proceeded to trial and was found guilty of
two crimes. Id.

   On appeal, we acknowledged that if “the parties and      the judge agree,
the trial Court may decide the issue of competency on       the basis of the
written reports alone.” Id. (quoting Fowler v. State, 255   So. 2d 513, 515
(Fla. 1971)). However, based on the facts of the case, we   held:

      In the instant case, it is clear from the record that neither
      party stipulated to the contents and admission of the doctor’s
      report. Nor was there any form of agreement between the
      parties and the judge to decide the issue of competency on the
      basis of the written report alone. 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. See, e.g., Fowler, 255 So. 2d at 515; Jones [v. State],
      125 So. 3d [982, 983 (Fla. 4th DCA 2013)]; Macaluso [v. State],
      12 So. 3d [914, 915 (Fla. 4th DCA 2009)].

Id. at 530.

   Similar to S.B., Hanna had also been found incompetent a few years
prior, and the parties both stipulated to competency. Also similar, neither


                                      4
party specifically stipulated to the report, but instead, plainly stipulated to
the competency.

    We therefore decline to find that Hanna inferably stipulated to the
report, but instead, simply stipulated to his competency. The trial court’s
reliance on this stipulation was erroneous.

   As the court stated in Williams, a new trial is not necessary, as long as
the trial court, “in a manner that comports with due process,” can “make
a nunc pro tunc competency evaluation.” 169 So. 3d at 223; see also
Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014) (“A new trial is not
always necessary where the issue of competency was inadequately
determined prior to trial; a retroactive determination of competency is
possible.”). This same will suffice here.

   Affirmed in part, reversed in part, and remanded.

LEVINE, J., and SMALL, LISA, Associate Judge, concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                      5
