        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          TRAVIS WASHINGTON,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D13-1213

                             [March 18, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Stephen A. Rapp, Judge; L.T. Case No. 50-2007-CF-
014640-BXXX-MB.

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

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

    Appellant appeals the trial court’s finding that he was competent to
proceed to trial. We find that the record lacked competent, substantial
evidence to support this finding for two reasons. First, the court’s pre-trial
determination that appellant was competent was based on stale
competency evaluations. Second, even taking into account an updated
evaluation the court ordered later during the trial, there was no testimony
affirmatively demonstrating that appellant was competent to proceed. The
only testimony in the record either supported that appellant was
incompetent to proceed or that appellant was malingering or feigning, and
the testimony established that malingering or feigning was not necessarily
incompatible with a finding of incompetency. Therefore, we conclude the
trial court erred in finding appellant competent to proceed and
consequently we reverse and remand.

   Appellant was charged with two counts of sexual battery on a person
less than twelve years of age. Appellant has sickle cell anemia and has
suffered several strokes, which prompted inquiry into appellant’s
competency to proceed to trial. Between December of 2008 and July of
2009, three experts were appointed to determine appellant’s mental
condition and evaluate if appellant was competent to proceed.

   At a competency hearing on October 30, 2009, two of the three experts
opined that appellant was not competent to proceed. The third expert
declined to render a professional opinion regarding appellant’s
competency.

   Dr. Fichera found that appellant was “unable to demonstrate an
understanding of, or a recollection of what the events surrounding the
charges were.” Dr. Fichera found that appellant did not have “sufficient
understanding of the proceedings” and “could not participate in an
adequate level.”   Thus, Dr. Fichera concluded that appellant was
incompetent.

   Dr. Alexander found appellant unable to understand or respond to
directions that were “beyond a very rudimentary level.” Dr. Alexander did
not find that appellant was malingering. Dr. Alexander also concluded
that appellant did not understand the adversarial nature of the legal
system and did not have the capability to testify or assist in his own
defense. Thus, Dr. Alexander concluded that appellant was “incompetent
to proceed to trial based on the severity and permanency of the
neuropsychological disabilities.”

    Dr. Charash testified that appellant had “very limited speech
production” and “difficulty with motor functions.” Dr. Charash testified
that appellant’s performance on forced memory tests he administered to
appellant during his examination led him to conclude that appellant was
malingering or “intentionally presenting himself as being more impaired
than he actually is.” However, Dr. Charash also stated that “the presence
of malingering, even compelling evidence of malingering, doesn’t in and of
itself indicate that a person is competent.” Thus, Dr. Charash declined to
“render a firm professional opinion” regarding appellant’s competency to
proceed.

  On November 6, 2009, the trial court entered an order finding appellant
competent to proceed.

    On December 3, 2010, appellant moved to stay proceedings based upon
an updated neuropsychological evaluation from the University of Miami
School of Medicine stating that appellant’s condition had worsened. The
trial court granted the request for a second competency hearing, which it
held in April and May of 2012.

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    At the hearing, Dr. Alexander testified that appellant was not competent
to proceed based on his April 2011 examination of appellant. Dr.
Alexander opined that appellant was “not cognitively sophisticated enough
to try to mount a reasonable effort of malingering anything.” Dr. Charash
testified that based on his May 2011 examination of appellant, appellant’s
performance on the memory tests improved. This further supported Dr.
Charash’s earlier opinion that appellant was malingering. Finally, Dr.
Leporowski testified that she found no evidence of malingering and
concluded that appellant was “not competent to proceed” based on her
October 2011 examination of appellant. Dr. Leporowski testified that the
memory tests administered by Dr. Charash were “quite specific[ally]
related to malingering memory only” and had “nothing to do with language,
higher cognitive functioning, lots of other brain functions,” which was
more relevant for an evaluation of competency. She also testified that
appellant would not understand possible penalties, be able to respond to
challenging questions on either direct or cross, decide whether to take a
plea, or be able to assist his attorney in his own defense.

  On May 3, 2012, the trial court entered an order finding appellant
competent to proceed.

   On September 20, 2012, appellant filed an emergency motion to stay
the proceedings pending an updated competency hearing. The court
denied the motion stating, “[W]e have had several hearings on the same
topic.”

   The case proceeded to trial on February 25, 2013. Defense counsel
renewed the emergency motion explaining that he did not believe appellant
was competent, and that he and two doctors were unable to discuss the
plea offer with defendant. The trial court denied the renewed motion.

   During the state’s case-in-chief, defense counsel once again renewed
his motion, stating that appellant was not able to assist him at all and did
not “appear to have an understanding of what’s taking place.” The court
ruled to not stay proceedings, but appointed Dr. Brannon to examine
appellant during trial. After the state rested, defense counsel moved for a
mistrial, which the trial court denied.

   On February 28, 2013, the court held a hearing based on Dr. Brannon’s
examination and report of appellant’s competency. Dr. Alexander was
recalled and testified his opinion that appellant was incompetent remained
unchanged.      Dr. Alexander attributed any alleged malingering to
appellant’s mild mental retardation and serious depression over his

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condition. Dr. Brannon testified that appellant was uncooperative during
the examination, refusing to answer questions and repeatedly saying he
did not know or could not remember. Dr. Brannon concluded that
appellant was “feigning,” or “giving less than adequate effort,” which was
secondary to malingering. Dr. Brannon testified that he could not
“ethically” give a competency opinion to the court, but agreed that
someone who is feigning or malingering could be incompetent. The court
delayed ruling stating, “[L]et me think about this.”

   After the presentation of one defense witness, defense counsel renewed
his prior motion for a mistrial based on appellant’s “inability to decide to
take the stand or not and help in his own defense.” The court denied the
mistrial noting it was “still debating in my mind the issue of competency.”

    During discussion of the jury instructions, defense counsel again
renewed his motion to stay proceedings and for mistrial given that
appellant could not assist defense counsel in deciding to plea or in picking
jury instructions. The court again denied the motion. The jury found
appellant guilty as charged. Defense counsel moved for a new trial,
judgment of acquittal, and/or an arrest of judgment based, in part, on the
trial court’s denial of his prior motion to stay proceedings and hold an
updated competency hearing.

   At the sentencing hearing, the trial court entered an order finding that
appellant was and remains competent. The trial court explained that it
previously considered a “plethora of medical records,” including several
examinations performed in 2008 “unconnected with the criminal
proceedings” intended to determine appellant’s “suitability for bone
marrow transplants or other treatments for sickle cell anemia.” The court
found those records demonstrated appellant was “cooperative and helpful”
unlike his demeanor years later with Drs. Charash and Brannon, but the
order did not specifically link the contents of those five-year-old tests to
appellant’s competence to proceed to trial. The court stated it found that
nothing had really changed concerning appellant’s mental status and
classified Dr. Alexander as “very glib” and “certain in his opinions,” which
the court found “were not based on any testing.” The court also noted that
Dr. Alexander’s “characterization of other medical records were
inconsistent with this Court’s review of these records,” but did not
elaborate on this point. The court’s order did not specify any findings
regarding appellant’s ability to understand the proceedings against him or
his ability to assist in his own defense.1

1 The prior orders finding appellant competent also lack specific findings on
appellant’s abilities which would demonstrate his competency to proceed to trial.

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   Defense counsel objected to sentencing going forward in light of
appellant’s incompetence. The trial court overruled the objection and
denied appellant’s motion for a new trial. The court adjudicated appellant
guilty and sentenced him to two years’ imprisonment on each count, to
run consecutively.

   On appeal, appellant argues that the trial court abused its discretion
in finding him competent to proceed. The state responds that the trial
court properly resolved the factual disputes in favor of finding appellant
competent, and that determination is supported by competent, substantial
evidence.

    “A trial court’s decision regarding competency will stand absent a
showing of abuse of discretion.” Peede v. State, 955 So. 2d 480, 489 (Fla.
2007) (citation omitted). “[W]hen analyzing a competency determination
on appeal, this Court applies the competent, substantial evidence
standard of review to the trial court’s findings.” Gore v. State, 24 So. 3d 1,
10 (Fla. 2009); see also McCray v. State, 71 So. 3d 848, 862 (Fla. 2011)
(“[T]his Court will not disturb the trial courts resolution of that factual
dispute so long as it is supported by competent, substantial evidence.”).
“Where there is sufficient evidence to support the conclusion of the lower
court, [this Court] may not substitute [its] judgment for that of the trial
judge.” Peede, 955 So. 2d at 489 (quoting Alston v. State, 894 So. 2d 46,
54 (Fla. 2004)). “Competent substantial evidence” has been defined as
“such evidence as will establish a substantial basis of fact from which the
fact at issue can be reasonably inferred; that is, such relevant evidence as
a reasonable mind would accept as adequate to support a conclusion.”
Pauline v. Lee, 147 So. 2d 359, 362 (Fla. 2d DCA 1962) (quoting Trader
Jon, Inc. v. State Beverage Dep’t, 119 So. 2d 735 (Fla. 1st DCA 1960)).

   “The test for whether a defendant is competent to stand trial is ‘whether
he has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a
rational as well as factual understanding of the proceedings against him.’”
Peede, 955 So. 2d at 488 (Fla. 2007) (quoting Dusky v. United States, 362
U.S. 402, 402 (1960)); see also Fla. R. Crim. P. 3.211(a)(1). “A defect that
impairs a defendant’s comprehension or hampers his ability to consult
with his counsel effectively, whether arising from physical or mental
impairment, may lead to a finding of incompetence.” Holmes v. State, 494
So. 2d 230, 232 (Fla. 3d DCA 1986) (citation omitted). “Thus, where a
defendant is unable to understand and participate in the legal proceedings
because of his inability to communicate, the state is precluded from
subjecting him to a trial.” Id.

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         Once a defendant is declared competent, the trial court
      must still be receptive to revisiting the issue if circumstances
      change. However, only if bona fide doubt is raised as to a
      defendant’s mental capacity is the court required to conduct
      another competency proceeding.              A presumption of
      competence attaches from a previous determination of
      competency to stand trial.

Hunter v. State, 660 So. 2d 244, 248 (Fla. 1995) (citations omitted). “The
trial court should not find a defendant competent where the record
provides no reason to reject overwhelming and uncontested expert
testimonies to the contrary.” Duncan v. State, 115 So. 3d 1121, 1121 (Fla.
1st DCA 2013). Additionally, “the trial court’s focus must be on the
defendant’s mental state at the time of the proceeding in question, not at
some time in the past, and stale mental health reports will not support an
adjudication of incompetency.” In re Commitment of Reilly, 970 So. 2d 453,
455 (Fla. 2d DCA 2007).

    Here, the trial court found appellant competent in May 2012 based on
testimony and reports from three experts who examined him in April, May,
and October of 2011. Thus, the trial court’s finding was based on
evaluations completed six months to one year prior to the competency
hearing.     Those “stale” evaluations do not constitute competent,
substantial evidence of appellant’s competency. See id. at 456 (holding
that “the trial court departed from the essential requirements of the law in
relying upon” a “six-month-old report” because it “did not, and could not,
speak to [defendant’s] present ability to consult with his lawyer with a
reasonable degree of rational understanding or his present rational and
factual understanding of the proceedings against him” despite the parties’
stipulation); Brockman v. State, 852 So. 2d 330, 333-34 (Fla. 2d DCA 2003)
(holding that expert witness reports from four and eleven months prior to
trial regarding the defendant’s competence “were simply too old to be
relevant to a determination of [the defendant’s] competency to stand trial”
because the reports did not speak to the defendant’s competence at the
time of trial). Accordingly, the trial court abused its discretion in finding
appellant competent to proceed based on “stale” competency evaluations.

   The trial court’s determination during the February 2013 trial that
appellant was competent is unsupported by competent, substantial
evidence. The “stale” 2011 evaluations were not competent, substantial
evidence of appellant’s competence in February 2013. The only updated
testimony regarding appellant’s competence was based on Dr. Brannon’s
February 2013 evaluation of appellant. Dr. Alexander reviewed Dr.

                                     6
Brannon’s report and maintained his opinion that appellant was
incompetent. Dr. Brannon testified that appellant was “feigning,” or
“giving less than adequate effort” during the examination, but he agreed
that a person who is feigning could be incompetent. Dr. Brannon refused
to give a competency opinion to the court.        Thus, no competent,
substantial evidence was presented at the mid-trial competency hearing
that appellant was competent to proceed.

   Even taking into account the “stale” evaluations, the record still lacks
competent, substantial evidence that appellant was competent. In fact,
the “overwhelming and uncontested” testimony demonstrated appellant’s
incompetency.    There was no expert testimony that appellant was
competent. Drs. Alexander, Fichera, and Leporowski all opined that
appellant was incompetent. The remaining two experts, Drs. Charash and
Brannon, declined to give a competency determination. They opined that
appellant was either malingering or feigning, but testified that neither
malingering nor feigning was necessarily incompatible with a finding of
incompetency.     Here, “the record provides no reason to reject
overwhelming and uncontested expert testimonies” that appellant was
incompetent. Duncan, 115 So. 3d at 1121 (reversing upon the state’s
concession of error that “the trial court abused its discretion by finding
[the defendant] competent to proceed with sentencing despite the
uncontested testimony of two experts that he was incompetent” and
remanding for resentencing following new mental health evaluations and
a new competency hearing “as the ones at issue are now over a year old”).
Nothing in the record demonstrates that appellant had an “ability to
consult with his lawyer with a reasonable degree of rational
understanding” or that he possessed a “rational as well as factual
understanding of the proceedings against him.” Peede, 955 So. 2d at 488
(quoting Dusky, 362 U.S. at 402). The trial court’s conclusory finding that
appellant was competent is not supported by competent, substantial
evidence.

    In summary, the trial court’s pre-trial finding that appellant was
competent was improperly based on “stale” competency evaluations. The
trial court abused its discretion in not ordering an updated examination
of appellant prior to trial. Additionally, the record lacks competent,
substantial evidence to support the trial court’s mid-trial finding that
appellant was competent. Thus, we reverse appellant’s conviction and
remand for a new trial contingent upon a determination that appellant is
competent to stand trial.

   Reversed and remanded.


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GROSS and TAYLOR, JJ., concur.

                          *      *        *

  Not final until disposition of timely filed motion for rehearing.




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