       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         ANTHONY SIMMONS,
                             Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                            No. 4D18-2101

                          [February 20, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Michael Mirman, Judge; L.T. Case No. 43-2014-
CF-000117.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Appellant appeals his conviction and sentence, arguing that the trial
court fundamentally erred by failing to conduct a competency hearing
prior to accepting his plea. We agree and reverse for further proceedings
consistent with this opinion.
    Appellant was charged by information with one count of sexual battery
on a child under 12. Defense counsel filed a “Motion to Appoint Expert
from the Agency for Persons with Disabilities” to evaluate the defendant
for competency and intellectual disability, and a “Motion for Examination
of Defendant” pursuant to Florida Rule of Criminal Procedure 3.210(b) to
determine appellant’s competency to proceed. The trial court granted both
motions and entered orders appointing two experts to examine appellant.
One expert found appellant competent to proceed while the other expert
found him incompetent to proceed.
  The state moved to appoint a third mental health expert to examine
appellant, noting that the two evaluations had reached different results.
The trial court granted the motion and appointed a third expert. The third
expert’s report is not part of the record on appeal, but defense counsel
advised the trial court at appellant’s plea conference that this expert found
appellant competent to proceed.
   Almost three years after the completion of the competency evaluations,
the matter proceeded to a plea conference. Then, the trial court asked the
attorneys if appellant ever had a competency hearing, noting that the court
had seen an evaluation in the court file. The state responded that there
had not been a competency hearing. After a discussion, the judge and the
attorneys concluded that a competency hearing was unnecessary.
   Appellant pled no contest to the lesser charge of attempted capital
sexual battery and the trial court accepted the plea. The trial court did
not hold a competency hearing and did not enter a written order on
competency. As the state concedes, the trial court’s failure to do so
constitutes fundamental error.
   The procedure for determining a defendant’s competency is set forth in
Florida Rule of Criminal Procedure 3.210(b), which states:

      (b) Motion for Examination. If, at any material stage of a
      criminal proceeding, the court of its own motion, or on motion
      of counsel for the defendant or for the state, has reasonable
      ground to believe that the defendant is not mentally
      competent to proceed, the court shall immediately enter its
      order setting a time for a hearing to determine the defendant's
      mental condition, which shall be held no later than 20 days
      after the date of the filing of the motion, and may order the
      defendant to be examined by no more than 3 experts, as
      needed, prior to the date of the hearing. Attorneys for the
      state and the defendant may be present at any examination
      ordered by the court.

Fla. R. Crim. P. 3.210(b) (emphasis added). “Once a trial court has
reasonable grounds to believe the defendant is incompetent and orders an
examination, it must hold a hearing, and it must enter a written order on
the issue.” Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th DCA 2018), rev.
granted, No. SC18-681, 2018 WL 3635017 (Fla. July 11, 2018) (citing Fla.
R. Crim. P. 3.210(b), 3.212(b)). “Failure to do so is fundamental error and
requires reversal.” Id. In this case, once the trial court ordered the
competency examinations and those examinations were completed, the
trial court was required to hold a competency hearing and enter a written
order on the issue. See Augustin v. State, 244 So. 3d 336, 337 (Fla. 4th
DCA 2018).

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   “Generally, the remedy for a trial court’s failure to conduct a proper
competency hearing is for the defendant to receive a new trial, if deemed
competent to proceed on remand.” Dougherty v. State, 149 So. 3d 672,
678-79 (Fla. 2014). “A new trial is not always necessary where the issue
of competency was inadequately determined prior to trial; a retroactive
determination of competency is possible.” Id. at 679.

    “[W]here the issue of competency was inadequately determined below,
a retroactive determination of competency may be possible where there are
enough expert and lay witnesses who examined or observed the defendant
contemporaneous with the relevant stage of the proceeding and are
available to offer pertinent evidence at a retrospective hearing.” Presley v.
State, 199 So. 3d 1014, 1019 (Fla. 4th DCA 2016) (citing Dougherty, 149
So. 3d at 679). “Thus, on remand, if the court is able to make a nunc pro
tunc finding as to the [defendant]’s competency in a manner which
comports with due process considerations, then it should do so and enter
a written order accordingly.” A.L.Y. v. State, 212 So. 3d 399, 404 (Fla. 4th
DCA 2017). “On the other hand, if the court should find for any reason,
that an evaluation of the [defendant]’s competency at the time of the [plea
hearing] cannot be conducted in such a manner as to assure the
[defendant] due process of law, then the court should hold a new [trial]
upon the court determining that the [defendant] is competent to proceed.”
Id.

    Therefore, consistent with Dougherty and our precedent, we reverse and
remand for a nunc pro tunc competency determination. If, however, the
trial court cannot determine appellant’s competency at the time he entered
his plea consistent with due process guarantees, the trial court should
vacate appellant’s judgment and sentence and set the case for trial if
appellant is deemed competent to proceed at that time.

   Reversed and remanded.

GROSS, MAY and DAMOORGIAN, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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