        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                      ROBERT HAROLD BITTLE,
                            Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                            No. 4D16-2714

                            [April 25, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Dina A. Keever-Agrama and Joseph Marx, Judges; L.T.
Case No. 50-2010-CF-012102-AXXX-MB.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   The defendant below challenges the trial court’s determination that he
was competent to stand trial for charges relating to a bank robbery
committed in 2010. He argues the trial court erroneously relied on stale
competency evaluations. Because the defendant failed to preserve this
argument, we affirm.

   The trial court determined the defendant was incompetent to proceed
in 2013, but his competency was restored in April 2014. Defense
counsel moved to again determine competency in October 2014, alleging
that recent events had caused the defendant to decompensate.

   The court appointed two experts, Dr. Douglas Schooler and Dr.
Barbara Ann Barone, to examine the defendant. Each of the court-
appointed experts evaluated the defendant on October 27, 2014 and
each determined he was competent to proceed. The defendant hired two
of his own experts to conduct competency evaluations, which evaluations
took place on December 19, 2014 and March 13, 2015, respectively.
Each defense expert concluded he was incompetent.

   The required competency hearing was originally set for November 14,
2014, but was postponed numerous times, at least one time at the
defendant’s behest. When the hearing finally took place on July 21,
2015, both court-appointed experts testified to their opinion that the
defendant was competent. Dr. Barone additionally opined that some of
the defendant’s impairments were feigned. The defendant called his
experts to testify and they generally opined that he was incompetent due
to his inability to recall and discuss all of the events surrounding the
crime, which inability was related to a brain injury.

    The trial court “broke the 2-2 tie” and, using the evidence presented
to it, found the defendant competent to proceed. In the order finding the
defendant competent, the trial court directly addressed the issue of the
defendant’s credibility and adopted the position of the court-appointed
expert that the defendant was feigning his memory deficits.           The
defendant proceeded to trial and was convicted.

   On appeal, the defendant challenges the court’s second competency
determination, contending that the nine-month-old competency
evaluations on which the trial court relied were stale. Therefore, he
contends, there was not competent, substantial evidence to support the
court’s competency determination.

    We agree with the defendant insofar as he argues that the nine-
month-old competency evaluations conducted by the court-appointed
experts were stale, but for that matter, so were the four- and seven-
month-old evaluations presented to the court by the defense. See
Washington v. State, 162 So. 3d 284, 289 (Fla. 4th DCA 2015) (holding
competency evaluations that were six months to one year old were stale
and did not constitute competent, substantial evidence of competency);
In re Commitment of Reilly, 970 So. 2d 453, 456 (Fla. 2d DCA 2007)
(holding six-month-old evaluation “was too stale to be relevant” and “did
not provide competent, substantial evidence to support the trial court’s
finding”); Brockman v. State, 852 So. 2d 330, 333-34 (Fla. 2d DCA 2003)
(noting that four- and eleven-month-old expert reports “were simply too
old to be relevant to a determination of Brockman’s competency to stand
trial” because they “did not speak to Brockman’s competence” at the time
of trial).

   We nevertheless conclude that there is no reversible error here.
Where sufficiency of the evidence is challenged, the general rule requiring
a contemporaneous objection to preserve an issue for appellate review

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applies. F.B. v. State, 852 So. 2d 226, 229-30 (Fla. 2003). “Any
technical deficiency in proof may be readily addressed by timely objection
or motion, thus allowing the State to correct the error, if indeed it is
correctable, before the trial concludes.” Id.

   Because the defendant failed to contemporaneously object to the
sufficiency of the expert reports, our review is limited to fundamental
error. See id. at 229. Fundamental error is error that “goes to the
foundation of the case or goes to the merits of the cause of action” and
“amount[s] to a denial of due process.” D’Oleo-Valdez v. State, 531 So.
2d 1347, 1348 (Fla. 1988) (citations omitted).

   A trial court fundamentally errs if it fails to afford a defendant the
process outlined in the Florida Rules of Criminal Procedure 3.210-3.212,
which rules “protect a defendant’s right not to be tried or convicted while
incompetent to stand trial.” See Dougherty v. State, 149 So. 3d 672, 679
(Fla. 2014); see also Dortch v. State, Nos. 4D16-2815, 4D16-2816 (Fla.
4th DCA Apr. 4, 2018) (“One thing is certain: competency requires strict
adherence to the Florida Rules of Criminal Procedure 3.210-212.”).
Accordingly, waiver or stipulation within competency proceedings has
not precluded reversal in cases where the trial court has failed to hold an
evidentiary hearing or to make an independent finding of competency.
See, e.g., Dougherty, 149 So. 3d at 678 (holding defendant cannot
stipulate to finding of competency because trial court must make
independent determination of competency); Rumph v. State, 217 So. 3d
1092, 1094-95 (Fla. 5th DCA 2017) (finding fundamental error where
court accepted counsel’s implicit stipulation to competency and record
did not indicate that court reviewed expert reports before ruling); Raithel
v. State, 226 So. 3d 1028, 1032 (Fla. 4th DCA 2017) (reversing for
competency hearing where defense counsel failed to request one and
stating that invited error “does not apply in a competency context”).

    More akin to the issue at hand, however, the First District recently
held that the fact that the right to a competency hearing is unwaivable
“does not relieve [a defendant] of the responsibility to make evidentiary
objections relating to the competency determination.” Hendrix v. State,
228 So. 3d 674, 676 (Fla. 1st DCA 2017). In Hendrix, the trial court
accepted Hendrix’s plea before pronouncing him competent to proceed.
Id. at 675. At the sentencing hearing over a month later, the trial court
indicated that it read the expert competency evaluations and found
Hendrix was competent to proceed at the time the plea was entered. Id.
On appeal, Hendrix argued the trial court could not rely on the
evaluations because they were not admitted into evidence. Id. at 676.
The Hendrix court noted the lack of preservation and concluded, “As long

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as the trial court held a competency hearing, and made an independent
determination of competency, the lack of a proper foundation for the
consideration of the reports is not fundamental error.” Id.; see also
Merriell v. State, 169 So. 3d 1287, 1288-89 (Fla. 1st DCA 2015) (affirming
where court reviewed expert report and, without objection, orally
declared defendant competent at a status call hearing, but remanding for
entry of written nunc pro tunc order).

   We, too, determine that the protections afforded to a defendant within
the context of competency proceedings do not absolve a defendant from
the responsibility of making appropriate evidentiary objections in the
proceedings below. The trial court appropriately held a competency
hearing and made an independent finding of competency. The trial court
did not fundamentally err in relying on the stale reports, particularly
where Bittle himself offered his own stale reports for the trial court’s
consideration.

   Affirmed.

WARNER and KLINGENSMITH, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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