              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


ODANE SHAKES,                                )
                                             )
             Appellant,                      )
                                             )
v.                                           )        Case No. 2D14-4319
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed February 10, 2016.

Appeal from the Circuit Court for Polk
County; Catherine L. Combee, Judge.

Howard L. Dimmig, II, Public Defender, and
William L. Sharwell, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford Taylor,
Assistant Attorney General, Tampa, for
Appellee.



PER CURIAM.

             Odane Shakes appeals his convictions for attempted aggravated battery

on a law enforcement officer and resisting an officer with violence. He entered open

pleas of no contest and was sentenced to concurrent ten-year and five-year prison
sentences. On appeal, Shakes argues that his due process rights were violated by the

trial court's failure to hold an adequate competency hearing to determine that his

competency had been restored and that he should therefore be permitted to withdraw

his plea. We agree.

              On November 14, 2013, the trial court entered an order finding Shakes

incompetent to proceed and committing him to the Department of Children and

Families. On February 18, 2014, a "Competency Evaluation Report to the Court" was

filed in the case, and in the report, a psychologist concluded that Shakes was

competent to proceed. The report recommended that Shakes be returned to the county

jail for a final determination of competency. A hearing was held on March 14, 2014, and

Shakes was present with his defense counsel, who informed the court that Shakes was

back at the county jail and that he was "competent to proceed." The trial court then

stated, "Alright," and set the case on the docket for April 15th. The trial court asked if

the parties would be ready for trial at that point, and defense counsel stated that she

hoped the State would be making an offer. The trial court and defense counsel asked

Shakes if he was taking his prescribed medications, and he answered, "Yes."

              At the brief April 15, 2014, hearing, defense counsel stated that the

defense was not interested in going to trial and that the defense was working on

receiving an offer from the State. The case was continued.

              A plea hearing was held on July 3, 2014, and the trial court conducted a

plea colloquy with Shakes. The trial court stated that it knew Shakes was being treated

for mental illness and asked if Shakes was taking his medication as prescribed, and he

answered, "Yes." At the conclusion of the plea colloquy, the trial court stated:




                                            -2-
                     Alright, Mr. Shakes I will find that you are competent,
              coherent and alert. I find that you are freely, knowingly and
              voluntarily waiv[ing] your Constitutional Rights. I find that
              there is a factual basis for the plea based on my review of
              the Probable Cause Affidavit and find that you have
              knowingly entered into this plea and you understand the
              consequences of entering into this plea.

The trial court adjudicated Shakes guilty. At a later sentencing hearing, the trial court

sentenced Shakes to concurrent sentences of ten years in prison on count one and five

years in prison on count two.

              "An individual who has been adjudicated incompetent is presumed to

remain incompetent until adjudicated competent to proceed by a court." Dougherty v.

State, 149 So. 3d 672, 676 (Fla. 2014) (quoting Jackson v. State, 880 So. 2d 1241,

1242 (Fla. 1st DCA 2004)). Florida Rules of Criminal Procedure 3.210 through 3.212

"set forth the required competency hearing procedures for determining whether a

defendant is competent to proceed or has been restored to competency." Dougherty,

149 So. 3d at 677. Rule 3.210(a) provides that "[a] person accused of an offense or a

violation of probation or community control who is mentally incompetent to proceed at

any material stage of a criminal proceeding shall not be proceeded against while

incompetent." "[W]hen the court receives notice that a defendant has regained

competence, the court shall hold a hearing to determine if a defendant is competent to

proceed." Roman v. State, 163 So. 3d 749, 751 (Fla. 2d DCA 2015) (citing Jackson,

880 So. 2d at 1242); Fla. R. Crim. P. 3.212(c). The trial court may take the testimony of

court-appointed experts designated under rule 3.211, or where the parties and the trial

court agree, the trial court "may decide the issue of competency on the basis of the

written reports alone." Dougherty, 149 So. 3d at 677-78 (quoting Fowler v. State, 255




                                            -3-
So. 2d 513, 515 (Fla. 1971)); see Roman, 163 So. 3d at 751 ("If the parties agree, the

trial court can make its competency determination based solely on experts' reports.").

The trial court is tasked with making an independent legal determination regarding

whether the defendant is competent, after considering the expert testimony or reports

and other relevant factors. Dougherty, 149 So. 3d at 678 (holding that defendant may

not stipulate to ultimate issue of competency because trial court retains responsibility to

determine that issue). "[I]f a trial court finds that a defendant is competent to proceed, it

must enter a written order so finding." Id.

              In this case, the trial court did not hold the necessary competency hearing

and did not make an independent determination of competency before accepting

Shakes' plea. The trial court did not consider the testimony of any 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 the

case. To the extent that the trial court relied on defense counsel's representation that

Shakes was competent, such reliance is not permitted. See Roman, 163 So. 3d at 750-

51 (holding that trial court failed to make proper competency determination where

defendant's competency was mentioned by defense counsel at a suppression hearing

but no competency hearing was held and the parties did not stipulate to the trial court's

relying on expert reports concluding that defendant had regained competency); S.B. v.

State, 134 So. 3d 528, 530 (Fla. 4th DCA 2014) (holding that trial court erred in finding

defendant competent where defense counsel "stipulate[d]" to competency based on

finding in expert's report, State also stipulated to competency, and trial court found

defendant competent based on stipulations and report; although parties stipulated to




                                              -4-
competency, "neither party stipulated to the contents and admission of the doctor's

report," there was no "form of agreement between the parties and the judge to decide

the issue of competency on the basis of the written report alone," and "there is nothing

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

to satisfy rule 3.212"); Macaluso v. State, 12 So. 3d 914, 915 (Fla. 4th DCA 2009)

(holding that trial court failed to make proper competency determination where defense

counsel advised the court that defendant's competency had been restored and the trial

court, without further hearing or evidence, declared defendant competent and

proceeded with trial); cf. Hunter v. State, 174 So. 3d 1011, 1014-15 (Fla. 1st DCA 2015)

(holding that trial court's implicit finding of competency was sufficient where trial court

heard from two experts at a competency hearing, affirmatively agreed to statement that

defendant was competent, and conducted trial proceedings).1 "[N]othing in [Florida]

precedent [states] that a defendant can stipulate to the ultimate issue of competency,

even where the written reports reach the same conclusion." Dougherty, 149 So. 3d at

678. "Although the trial court, when the parties agree, may decide the issue of

competency on the basis of written reports alone, it cannot dispense with its duty to

make an independent determination about a defendant's competency . . . ." Id. at 679.


              1
                The State argues that the trial court's procedure in this case was in line
with that in Martinez v. State, 851 So. 2d 832, 833-34 (Fla. 1st DCA 2003), in which the
court affirmed a plea after "counsel represented to the court that appellant was
competent to proceed," and "the judge responded, 'All right, sir.' " The court rejected
the dissent's view that the trial court's statement "should not be construed as an oral
determination of competency," stating that "we will not presume that the court acted
contrary to the dictates of the law by declining to make such finding once it was aware
of the prior adjudication of incompetency." Id. at 834-35. But in Martinez, the appellant
challenged only the lack of a written order of competency: "[n]either the defendant nor
the state has contended on appeal that such statement was anything less than a finding
of competency." Id. at 834. Thus, Martinez is distinguishable from this case, in which
Shakes claims that the trial court did not make the required finding of competency.


                                             -5-
In addition, the trial court never entered a written finding of competency, further

indicating that the trial court did not make an independent competency determination.2

              Shakes raises this issue for the first time on appeal; he did not first

present it in a motion to withdraw plea. See Fla. R. App. P. 9.140(b)(2)(A)(ii)(c). The

First District recently held that where a defendant has been adjudicated incompetent

and had not been determined to have regained his competency prior to the entry of the

plea, the competency issue is cognizable on direct appeal in the absence of a motion to

withdraw plea. See Ross v. State, 155 So. 3d 1259, 1260 (Fla. 1st DCA 2015).

                      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 invalid as a
              matter of law and subject to challenge for the first time on
              direct appeal. Because appellant had been adjudicated
              incompetent prior to the entry of the plea, the competency
              issue was cognizable on direct appeal without a motion to
              withdraw plea.

Id. (citations omitted). The Ross court cited to Vestal v. State, 50 So. 3d 733, 735 n.2

(Fla. 5th DCA 2010), which noted that under rule 3.210(a), "[a]n individual adjudicated

incompetent is presumed to remain incompetent until and unless adjudicated competent

again after a hearing" and suggested that if a defendant has "been adjudicated

incompetent prior to the entry of the plea, the competency issue [is] cognizable on direct


              2
               The record contains a "memo of sentence/order of the court" dated March
14, 2014, that states "Hrg Held>Deft. Competent to Proceed." But the trial judge did not
sign this order. Even if the trial court had signed this order, it would not have satisfied
the requirement of a written order. See Carroll v. State, 157 So. 3d 385, 386 (Fla. 2d
DCA 2015). The State concedes that the trial court was required to enter a written
finding that Shakes was competent to proceed and that remand is necessary for entry of
an order. See Fla. R. Crim. P. 3.212(c)(7); Dougherty, 149 So. 3d at 678; Corbitt v.
State, 744 So. 2d 1130 (Fla. 2d DCA 1999); Hunter, 174 So. 3d at 1015.


                                            -6-
appeal without a motion to withdraw plea." Cf. Burns v. State, 884 So. 2d 1010, 1012-

14 (Fla. 4th DCA 2004) (holding that defendant could not argue for the first time on

appeal that the trial court erred in accepting his plea without first holding a competency

hearing; error was not preserved by motion to withdraw plea and was not fundamental);

Hicks v. State, 915 So. 2d 740, 741 (Fla. 5th DCA 2005) (same).

              We agree with Ross and Vestal. Accordingly, we reverse and remand for

the trial court to allow Shakes to withdraw his plea and to hold a proper competency

hearing in accordance with this opinion.

              Reversed; remanded.



ALTENBERND, KHOUZAM, and MORRIS, JJ., Concur.




                                           -7-
