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


                                         IN THE DISTRICT COURT OF APPEAL
                                         OF FLORIDA
                                         SECOND DISTRICT



DAVID S. CRAMER,                 )
                                 )
           Appellant,            )
                                 )
v.                               )                 Case No.    2D15-1434
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed March 1, 2017.

Appeal from the Circuit Court for
Charlotte County; Amy R. Hawthorne,
Judge.

Howard L. Dimmig, II, Public Defender,
and John C. Fisher, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and John M. Klawikofsky,
Assistant Attorney General, Tampa, for
Appellee.



KELLY, Judge.


                      ORDER RELINQUISHING JURISDICTION

             David Cramer appeals from his convictions for possession of a controlled

substance, possession of drug paraphernalia, and escape. He argues that he was
deprived of due process because the trial court failed to make an independent finding

that he was competent to proceed to trial. We agree and relinquish jurisdiction to the

trial court for further proceedings consistent with this order.

              Before trial, two court-appointed experts submitted written reports

indicating Cramer was competent. At a hearing that followed, defense counsel stated

the experts found Cramer competent and "we are in a position that we are proceeding

toward the trial." The trial court made no oral findings regarding Cramer's competency.

The State offered to prepare a proposed competency order and although the trial court

apparently agreed, there is no competency order in the record.

              The rules of criminal procedure require the trial court to hold a hearing

when the court has reasonable grounds to question the defendant's competency.

Dougherty v. State, 149 So. 3d 672, 677 (Fla. 2014) (citing Fla. R. Crim. P. 3.210(b)). A

proper competency hearing generally requires testimony from court-appointed expert

witnesses, but where the parties and the trial court agree, the court "may decide the

issue of competency on the basis of the written reports alone." Id. at 677-78 (quoting

Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971)); accord Roman v. State, 163 So. 3d

749, 751 (Fla. 2d DCA 2015) ("If the parties agree, the trial court can make its

competency determination based solely on experts' reports."). However, the written

reports are advisory only. Dougherty, 149 So. 3d at 678. The trial court is required to

make an independent determination of competency. Id. Furthermore, the trial court is

not permitted to accept stipulations to the ultimate issue of competency, "even when all

the experts have opined that the defendant is competent, as other evidence may




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indicate incompetence." Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016) (citing

Dougherty, 149 So. 3d at 678).

              The record shows the trial court failed to conduct a proper competency

hearing. Instead, the trial court accepted a stipulation of competence from defense

counsel without making an independent determination that Cramer was competent to

proceed to trial. See Dougherty, 149 So. 3d at 678. "Because an independent

competency finding is a due-process right that cannot be waived once a reason for a

competency hearing has surfaced, the trial court fundamentally erred in failing to make

such a finding." Zern, 191 So. 3d at 965.

              The failure to hold a proper competency hearing or enter a written

competency order does not always require vacation of the defendant's judgment and

sentence. See Fowler, 255 So. 2d at 515. It is possible to retroactively determine

competency provided it can be done in a manner that assures a defendant due process

of law. Dougherty, 149 So. 3d at 679 (citing Mason v. State, 489 So. 2d 734, 737 (Fla.

1986)). Accordingly, we relinquish jurisdiction to the trial court for sixty days from the

date of this order and direct the trial court to conduct a new competency hearing

following the procedure set forth by the supreme court in Fowler.




CRENSHAW and BLACK, JJ., Concur.




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