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

JULIAN O. BELIZAIRE,                 NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-3269

STATE OF FLORIDA,

     Appellee.
___________________________/

Opinion filed April 12, 2016.

An appeal from the Circuit Court for Duval County.
James H. Daniel, Judge.

Nancy A. Daniels, Public Defender, Glenna Joyce Reeves, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant appeals his convictions and sentences for two counts of sexual

battery.   Appellant asserts that the trial court (1) failed to conduct a proper

competency hearing and enter a written order finding him competent to proceed

after a prior adjudication of incompetency, (2) erred in denying his motion to
suppress his confession as the State failed to establish a knowing and voluntary

waiver of his constitutional rights, and (3) fundamentally erred in allowing

collateral crime evidence. We agree as to the first issue, and reverse and remand

for a nunc pro tunc competency proceeding. We affirm the second and third issues

without comment.

                                       Facts

      During a May 2013 hearing, when asked if he was satisfied with his counsel,

Appellant raised his competency as an issue, claiming he had not received a

psychiatric evaluation or received clearance. Appellant’s counsel indicated that he

had just come on to the case and asked for the chance to speak with his client.

Discussing the issue with the court, counsel indicated that Appellant was claiming

to have mental health difficulties that he had reported to his other counsel, and

Appellant asserted that the court previously said he would be entitled to a mental

health evaluation. The court denied this assertion, but informed Appellant that his

two attorneys could order an evaluation if they deemed it necessary. Thereafter, an

evaluation report by Appellant’s expert was filed that, although finding Appellant

to be acceptable as to almost all of the statutory factors, concluded that he was

incompetent to proceed based on one statutory factor. In response, the State filed a

motion for competency, requesting an examination. This request was granted, and

the State subsequently filed a report from its expert who found Appellant

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competent to proceed.

         A competency proceeding was then held, with Appellant’s counsel

acknowledging receipt of the second report.         During the hearing, the court

indicated it had not read the first report, and the State reviewed those findings. The

State questioned requesting this second evaluation, as Appellant’s own expert

found him competent on every statutory factor except one. Appellant’s counsel

asked for the opportunity to have his expert reevaluate Appellant, as his expert

might change his opinion based on the second evaluation and it would alleviate the

need for another hearing, and the court agreed. At the second competency hearing,

Appellant’s counsel stated that both the State’s report and his expert’s report

indicated that Appellant was competent to proceed and they could move forward

with the case. The court responded, “All right. So what we need now is just a trial

date.”

         After this second competency hearing, no further discussions on his

competency occurred, no order on competency was entered, and the case

proceeded to trial.     Appellant filed a pro se motion requesting law library

privileges to assist in his defense, which was granted, and provided input multiple

times throughout the jury selection and the trial. The jury found Appellant guilty

as charged. Appellant then filed multiple pro se motions, including a motion for

extension of time to file a motion for new trial, notice of appeal, statement of

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judicial acts, and request for documents from the clerk of court.

                                      Analysis

      As we previously held in Ross v. State, 155 So. 3d 1259, 1259-60 (Fla. 1st

DCA 2015):

      Under Florida Rule of Criminal Procedure 3.210, a criminal
      prosecution may not move forward at any material stage, which
      includes entry of a plea, against a defendant who is incompetent to
      proceed. Dougherty v. State, 149 So.3d 672, 676–77 (Fla. 2014). 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. Id. at 677–78. These requirements
      cannot be waived by a stipulation. Id. at 678.

Furthermore, as we recently indicated in Reynolds v. State, 177 So. 3d 296, 298

(Fla. 1st DCA 2015):

      If the trial court fails to hold a competency hearing or enter a written
      order of competency, reversal is required; however, a new trial . . . is
      required only if the trial court is unable to conduct a nunc pro tunc
      evaluation of the defendant's competency at the time of the original
      trial or hearing. Id. at 679 (explaining that “a nunc pro tunc
      competency evaluation could be done where ‘there are a sufficient
      number of expert and lay witnesses who have examined or observed
      the defendant contemporaneous with trial available to offer pertinent
      evidence at a retrospective hearing’”) (quoting Mason v. State, 489
      So.2d 734, 737 (Fla. 1986)); see also Merriell v. State, 169 So.3d
      1287 (Fla. 1st DCA 2015); Hunter v. State, 174 So.3d 1011 (Fla. 1st
      DCA 2015); Ross v. State, 155 So.3d 1259 (Fla. 1st DCA 2015).

      Here, the record does not demonstrate that the trial court conducted a formal

competency hearing or made a conclusive and independent oral or written finding
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that Appellant had been restored to competency. We acknowledge that the trial

court conducted more than one competency hearing and reviewed the reports with

the parties, but we must interpret the court’s statement of “All right” as simply

accepting Appellant’s counsel’s stipulation that because both experts found

Appellant competent, they could proceed with the trial. Based on the foregoing,

we reverse and remand for a determination of whether the trial court can determine

Appellant’s competency nunc pro tunc or whether a new trial must be conducted.

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings.

ROBERTS, C.J., WOLF and THOMAS, JJ., CONCUR.




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