       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         MATTHEW V. HAWKS,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D16-2403

                           [August 23, 2017]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No.
312014CF000378A.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

    The Defendant appeals his conviction and sentence, arguing the court
erred when it failed to conduct a hearing and issue a written order
determining his competency after previously finding reasonable grounds
to question his competence. We agree, vacate the conviction and sentence,
and remand for further proceedings.

                              Background

   In 2014, the State charged the Defendant by information with making
a false report of placing a bomb or other deadly explosive with the intent
to deceive. He pled no contest, and the court withheld adjudication and
placed him on probation for five years.

   One of the special conditions of his probation prohibited him from
“accessing the Internet or other computer services with Internet access.”
After he accessed Facebook during his probationary period, the State
issued an affidavit of violation of probation.
   On two occasions his counsel moved for a competency determination
and asked for a court-appointed physician to examine him. The court
granted both motions, but the record does not contain any medical
evaluations nor any indication as to what the Defendant’s medical
evaluations may have revealed.

    The only reference to the Defendant’s competency found in the record
occurred during a change of plea hearing when the court asked him if he
was taking any medication. The Defendant responded that he was taking
“like six” psychotropic medications. The court noted the Defendant’s prior
mental health issues and then asked defense counsel whether there was
an evaluation of the Defendant and whether he was competent. Counsel
responded affirmatively to both questions. After this brief inquiry, the
court accepted the change of plea and entered judgment against the
Defendant. The court sentenced him to ten years in prison followed by
two years of community control. This appeal followed.

                                  Analysis

   The procedure for determining a defendant’s competency is governed
by Florida Rules of Criminal Procedure 3.210 through 3.215. We review
the court’s judgment and its compliance with these rules de novo. Baker
v. State, 42 Fla. L. Weekly D1257 (Fla. 4th DCA May 31, 2017) (citation
omitted).

    Under Rule 3.210, “once a trial court has reasonable grounds to believe
that a criminal defendant is not competent to proceed, it has no choice but
to conduct a competency hearing.” Monte v. State, 51 So. 3d 1196, 1202
(Fla. 4th DCA 2011) (citing Fla. R. Crim. P. 3.210-3.212). The court’s
obligation is triggered upon its initial finding that occurs when it enters an
order appointing an expert to evaluate a defendant’s competency. Id.; see
also Moorer v. State, 187 So. 3d 315, 317 (Fla. 1st DCA 2016). Rule 3.210
is clear and is designed to “safeguard a defendant’s due process right to a
fair trial and to provide the reviewing court with an adequate record on
appeal.” Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014).

    Here, based upon two motions filed by defense counsel, the court
determined it had reasonable grounds to question the Defendant’s
competency and appointed a physician to evaluate him. That finding
triggered the court’s obligation to conduct a competency hearing. The
record does not indicate whether the court reviewed the evaluations it
ordered or made any findings based upon any evaluations. Merely asking
counsel whether the Defendant is competent was not sufficient to satisfy


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Rule 3.210(b), which requires the court to hold a hearing to independently
determine the Defendant’s competency.

   Further, Florida Rule of Criminal Procedure 3.212(b) “mandates the
entry of a written order of competency.” Holland v. State, 185 So. 3d 636,
637 (Fla. 2d DCA 2016) (citing Dougherty, 149 So. 3d at 677). Even if an
evaluation indicates that a defendant is competent to proceed, the law
requires the court to issue a written order finding the defendant
competent. Deferrell v. State, 199 So. 3d 1056, 1061 (Fla. 4th DCA 2016).
The court did not enter such a written order.

   To summarize, Rule 3.210 is triggered when a court makes an initial
determination that it has reasonable grounds to question the competency
of a defendant. When that initial determination is made, the court must
take the following three steps.

   First, the court must enter an order that schedules a competency
hearing, appoints experts to evaluate the defendant’s competency, and
satisfies the requirements of Rule 3.210(b)(4). 1

   Second, as required by Rule 3.212(b), the court must hold the
scheduled hearing during which any party or the court may call the
appointed experts to testify, and the parties may introduce any other
evidence that has bearing on the defendant’s competence.

  Third, the court must issue a written order making findings as to the
competency of the defendant as is specifically required by Rule 3.212(b).

   In this case, while the court appointed an expert to evaluate the
Defendant’s competency, it did not hold the required hearing or issue an
order making findings as to the Defendant’s competency. This was error.
Therefore, we vacate the court’s judgment and sentence.

    Now we turn to the proceedings on remand. “Generally, failing to find
a defendant competent after previously finding reasonable grounds to
question his competency would entitle the ‘defendant to receive a new trial,
if deemed competent to proceed on remand.’” D.B. v. State, 42 Fla. L.
Weekly D1401 (Fla. 4th DCA June 21, 2017) (quoting Dougherty, 149 So.

1 Rule 3.210(b)(4) mandates the order to “(A) identify the purpose or purposes of

the evaluation, including the nature of the material proceeding, and specify the
area or areas of inquiry that should be addressed by the evaluator; (B) specify the
legal criteria to be applied; and (C) specify the date by which the report should be
submitted and to whom the report should be submitted.”

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3d at 678–79). However, based upon statements of the Defendant’s
counsel to the court, there is some indication in the record that a
competency evaluation was conducted. Therefore, a retroactive
determination of competency may be possible if the expert and fact
witnesses are able to testify based upon observations and conclusions
made contemporaneously with the court’s earlier adjudication. Id.; see
also A.L.Y. v. State, 212 So. 3d 399, 404 (Fla. 4th DCA 2017); Bain v. State,
211 So. 3d 139, 140 (Fla. 4th DCA 2017).

   In determining whether a nunc pro tunc evaluation is possible, the court
must be mindful of the Defendant’s due process rights and must not make
a nunc pro tunc determination if those rights are not protected. Baker, 42
Fla. L. Weekly at D1258 (citing A.L.Y., 212 So. 3d at 404). In that instance,
the court must adjudicate his current competency and, if he is found
competent, the court may proceed on the merits on the charges.

                                Conclusion

   When the court made the initial determination that it had reasonable
grounds to question the Defendant’s competency, it was required to hold
a hearing and determine whether the Defendant was competent to
proceed. Because the court failed to hold the requisite hearing and failed
to enter an order finding the Defendant competent, we vacate the
conviction and sentence and remand for further proceedings consistent
with this opinion.

   Vacated and remanded for further proceedings.

TAYLOR and DAMOORGIAN, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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