       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                             JOVON DIXON,
                               Appellee.

                             No. 4D18-3694

                            [March 11, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ernest A. Kollra, Judge; L.T. Case Nos. 03-10133CF10A
and 14-2594CF10A.

   Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellant.

  Richard L. Rosenbaum of Law Offices of Richard Rosenbaum, Fort
Lauderdale, for appellee.

DAMOORGIAN, J.

   The State appeals a final order granting Jovon Dixon’s (“Defendant”)
Florida Rule of Criminal Procedure 3.850 motion for postconviction relief,
finding counsel was ineffective and vacating Defendant’s plea agreement.
On appeal, the State argues that the trial court erred in granting
postconviction relief on a ground not raised by Defendant in his rule 3.850
motion. Finding merit to the State’s argument, we reverse.

   In 2003, Defendant was charged with robbery. He pleaded guilty and
was sentenced to a prison term followed by probation. In 2014, while still
on probation, Defendant was charged with new law violations. While his
new case was pending, Defendant underwent a competency evaluation
and was found competent to proceed. The following year, defense counsel
requested another evaluation, which the trial court granted. Defense
counsel never presented the competency reports to the trial court or
requested a hearing on Defendant’s competency. Defendant then changed
his plea to guilty on all counts and admitted to violating the terms and
conditions of his probation.    Defendant was sentenced on all pending
cases.

   Thereafter, Defendant filed a rule 3.850 motion for postconviction relief
on six grounds. The State conceded that Defendant was entitled to an
evidentiary hearing on the second ground but argued that Defendant was
not entitled to a hearing on the remaining five grounds. The issue in
ground two was whether counsel was ineffective in misadvising Defendant
on the effect of a prison releasee reoffender (“PRR”) sentence pursuant to
section 775.082(9)(b), Florida Statutes (2015). The trial court agreed with
the State and conducted an evidentiary hearing on ground two and
summarily denied the other grounds raised in Defendant’s motion.

  At the evidentiary hearing, after both sides presented their witnesses
and argued the PRR issue, the trial court sua sponte brought up the
competency issue during the following exchange:

      THE COURT: Do you a have any other witnesses?

      THE STATE: No, sir.

      THE COURT: Fine, thank you. I do not need argument. I do
      not need argument. I will need some time to research this [the
      PRR issue]. I am – although not with respect to the Motion
      or anything like that, I am concerned about him taking a
      Plea where there is no Court Order when Competency was
      clearly ordered. And Judge McCarthy ordered the evaluation,
      that is what I should say. I don’t even know whether it came
      back, although [defense counsel] says that it did come back.
      I know that if it did come back, that the Court would have
      gotten a copy of it, and I know that because I get those every
      day, and there is no – I know that the Evaluation does not get
      into Odyssey, but there is no Court Order . . . So as I stated, I
      am concerned about that . . . And then I have to make a
      decision with respect to the testimony that we heard today, as
      to the PRR; but the Court on its own is going to take a look
      at the Competency situation.

(emphasis added).

   At the conclusion of the evidentiary hearing, the trial court found that
Defendant’s counsel was ineffective for (1) failing to submit the competency
reports to the trial court; and (2) failing to request a competency


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determination. It did not find that counsel was ineffective for misadvising
Defendant on the effect of a PRR sentence. This appeal follows.

   The State argues the trial court erred in granting postconviction relief
on a ground not raised by Defendant and not allowing it an opportunity to
respond to the competency issue. In the alternative, the State argues that
had the claim been properly raised, the claim would have failed because
there was insufficient evidence to “establish ‘at least’ a reasonable
probability that [Defendant] would have been found incompetent.”
Thompson v. State, 88 So. 3d 312, 318 (Fla. 4th DCA 2012). We agree.

   A trial court can only properly grant postconviction relief on a ground
raised by the defendant. State v. Daniels, 826 So. 2d 1045, 1046 (Fla. 5th
DCA 2002) (citing Roberts v. State, 715 So. 2d 302, 303 (Fla. 5th DCA
1998)); see also Greenlee v. State, 832 So. 2d 900, 900 (Fla. 3d DCA 2002)
(holding defendant could not raise on appeal of order denying motion for
postconviction relief an argument that was not raised in his motion for
postconviction relief). The Fifth District’s opinion in Daniels is instructive.

          In granting the post-conviction motion, the trial court did
      not find, as claimed in the defendant’s motion, that trial
      counsel was ineffective for failing to request that the jury be
      instructed on the crime of resisting a merchant. Rather, the
      trial court ruled, sua sponte, that counsel’s representative fell
      below the objective standard of reasonableness because he
      failed to discuss the lesser included offense instructions with
      the defendant and failed to expressly waive the resisting a
      merchant instruction on the record.

          Since a trial court can only properly grant post-conviction
      relief on a ground raised by the defendant, the trial court’s
      instant grant of relief based on a ground not set forth in the
      defendant’s motion was error.

Daniels, 826 So. 2d at 1046 (citing Roberts, 715 So. 2d at 303).

   In ground two of Defendant’s postconviction motion, he makes a
statement that he was “never given a hearing to access [sic] his
competence, nor did counsel take the initiative to ask for one.”
Additionally, Defendant attached a copy of the second competency report
to his postconviction motion. Beyond this oblique statement and the
attachment, Defendant’s postconviction motion never mentioned his
competency as an issue nor sought any relief based on incompetency. We
reject Defendant’s argument, raised for the first time on appeal, that his

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postconviction motion properly raised the competency issue for the trial
court’s consideration. We need look no further than the trial court’s own
statement which acknowledged that neither the motion nor the parties
raised Defendant’s competency as a ground for postconviction relief.

   In the alternative, the State argues that even if Defendant’s
postconviction motion had properly pleaded that counsel was ineffective
for failing to obtain a ruling on Defendant’s competency, granting the
motion on that ground would still be error. We agree.

    “[A] postconviction movant claiming ineffective assistance of counsel for
failure to investigate or request a competency determination must
establish ‘at least’ a reasonable probability that he or she would have been
found incompetent.” Thompson, 88 So. 3d at 318. In Thompson, we
explained how a defendant can succeed on such a claim under Strickland
v. Washington, 466 U.S. 668 (1984).

          To satisfy the deficiency prong based on counsel’s handling
      of a competency issue, the postconviction movant must allege
      specific facts showing that a reasonably competent attorney
      would have questioned competence to proceed. The standard
      for competency to proceed is set out in Dusky v. United States,
      362 U.S. 402, 80 S. Ct 788, 4 L. Ed. 2d 824 (1960), and
      codified in Florida Rule of Criminal Procedure 3.211. The
      question is “whether the defendant has sufficient present
      ability to consult with counsel with a reasonable degree of
      rational understanding and whether the defendant has a
      rational, as well as factual, understanding of the pending
      proceedings.” Fla. R. Crim. P. 3.211(a)(1). Conclusory
      allegations of incompetency are not enough to warrant an
      evidentiary hearing. See Atwater v. State, 788 So. 2d 223, 229
      (Fla. 2011). “[N]ot every manifestation of mental illness
      demonstrates incompetence to stand trial; rather, the
      evidence must indicate a present inability to assist counsel or
      understand the charges.” Card v. Singletary, 981 F.2d 481,
      487–88 (11th Cir. 1992). “[N]either low intelligence, mental
      deficiency, nor bizarre, volatile, and irrational behavior can be
      equated with mental competence to stand trial.” Medina, 59
      F.2d at 1107.

          The prejudice standard that applies to a typical claim of
      ineffective assistance of counsel, whether a reasonable
      probability exists that the outcome of the proceeding would
      differ, is ill-suited to a claim of alleged incompetency. . . . The

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      focus of the prejudice inquiry is on actual prejudice, whether,
      because of counsel’s deficient performance, the defendant’s
      substantive due process right not to be tried while
      incompetent was violated. In order to establish prejudice . . .
      the postconviction movant must, as with a substantive
      incompetency claim, set forth clear and convicting
      circumstances that create a real, substantive and legitimate
      doubt as to the movant’s competency.

Id. at 319 (alternations in original).

   The record reflects that defense counsel moved for a competency
evaluation in 2014 after being advised by Defendant’s parents that
Defendant had “mental problems” and had been on psychotropic medicine.
The report generated from the evaluation found Defendant was competent
to stand trial.

   Defense counsel moved for a second competency evaluation in 2015
after Defendant stated he did not “understand things” during a meeting
between the two in jail. Like the first report, the report generated from
this evaluation did not state Defendant was incompetent to proceed.
Instead, the report described Defendant as guarded and irritable, but not
suffering from mental health issues. Moreover, the report indicated
Defendant suffered from drug use and depression, and that malingering
could not be ruled out.

   At the evidentiary hearing, defense counsel testified that nothing made
him believe Defendant was incompetent to proceed. He explained he
strategically did not present the second report to the trial court because
he did not want to reveal that Defendant might be malingering.

   On the record before us, Defendant did not satisfy the prejudice prong
under Thompson because there were not “clear and convincing
circumstances that create[d] a real, substantive and legitimate doubt as to
the movant’s competency. . . . [A]ppellant’s history of drug abuse,
depression, and aggressive, rebellious behavior do not raise a valid
question as to his competency to stand trial.” Thompson, 88 So. 3d at 319,
321; see also Bush v. Wainwright, 505 So. 2d 409, 411 (Fla. 1987) (“The
numerous psychological problems now pointed out, such as learning
disabilities, a passive and dependent personality, and possible ‘diffuse
organic brain damage’ do not, when taken together, sufficiently raise a
valid question as to [the movant’s] competency to stand trial.”).



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   Here, the trial court found counsel should have requested a competency
hearing based on the second report that showed Defendant was guarded
and irritable, but not suffering from mental health issues. The trial court
did not find that Defendant set forth clear and convincing circumstances
that created a real, substantive, and legitimate doubt as to his competency
and, thus, suffered a violation of his substantive due process rights. See
Thompson, 88 So. 3d at 319. Under this correct standard, the record does
not establish that Defendant was prejudiced by counsel’s failure to present
the competency reports to the trial court and request a hearing on
Defendant’s competency.

   Reversed with instructions to rule on the claim that was the subject of
the evidentiary hearing.

LEVINE, C.J., and GROSS, J., concur.

                           *           *      *

   Not final until disposition of timely filed motion for rehearing.




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