          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             GIL CAMACHO,
                               Petitioner,

                                     v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D16-4064

                             [ July 26, 2017 ]

   Petition for writ of habeas corpus to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Melinda Brown, Judge;
L.T. Case No. 11-012367CF10A.

   Gil Camacho, Crawfordville, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for Respondent.

MAY, J.

    The petitioner alleges ineffective assistance of appellate counsel (IAAC)
in failing to raise seven issues on appeal. We find merit in the fourth issue
and grant the petition solely on that ground. That issue concerns the trial
court’s failure to hold a competency hearing after appointing experts to
evaluate petitioner’s competency.

   The State charged the petitioner with attempted first-degree murder
with a weapon and false imprisonment. He was convicted of attempted
second-degree murder and sentenced. We affirmed. Camacho v. State,
192 So. 3d 568 (Fla. 4th DCA 2016).

   In this proceeding, the petitioner alleged appellate counsel was
ineffective for failing to argue on appeal that:

   (1) his probation was illegally ordered to run concurrent with his period
       of incarceration;

   (2) double jeopardy barred his sentences;
   (3) his scoresheet improperly listed the primary offense of attempted
       second-degree murder as a level 9 offense rather than a level 8
       offense. And, the scoresheet incorrectly included points for severe
       victim injury without a jury finding;

   (4) the trial court failed to hold a competency hearing after appointing
       experts to evaluate competency;

   (5) trial counsel was ineffective for advising him not to testify at
       sentencing;

   (6) other grounds supported a reversal on the denial of the motion to
       suppress; and

   (7) the court erred in admitting inflammatory photographs of the
       victim’s injuries and bandages.

   In his fourth point, the petitioner argues his appellate counsel was
ineffective for failing to argue the trial court erred in not holding a
competency hearing and ruling on the issue after appointing experts to
evaluate his competency. Although the trial court docket reflects the court
held a hearing on defendant’s competency on October 25, 2013, the order
merely provides: “Mr. Camacho was present in Court this morning for a
status hearing.” There is no other indication in the record of any ruling
on the competency issue.

    The State responds the defendant aided in his defense demonstrating
his competence, but acknowledges that the case may need to be remanded
for a retroactive determination of Camacho’s competency.

    “The criteria for proving ineffective assistance of appellate counsel
parallel[s] the Strickland standard for ineffective trial counsel.” Rutherford
v. Moore, 774 So. 2d 637, 643 (Fla. 2000) (citation omitted). “If a legal
issue ‘would in all probability have been found to be without merit’ had
counsel raised the issue on direct appeal, the failure of appellate counsel
to raise the meritless issue will not render appellate counsel’s performance
ineffective.” Id. (citation omitted).

   We have previously granted an IAAC petition on essentially the same
facts. Silver v. State, 193 So. 3d 991 (Fla. 4th DCA 2016). There, the trial
court ordered two experts to evaluate the defendant’s competency and to
submit written evaluations. Id. at 993. The case later proceeded to trial,


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but the record contained “no doctor’s reports, no hearing on Silver’s
competence, and no order on the matter.” Id.

   We held the trial court was required to conduct a competency hearing
after appointing experts to evaluate Silver’s competency because the
appointment of experts suggested there were reasonable grounds to believe
Silver was not competent. Id. Nevertheless, we recognized that a
retroactive determination of competency may be possible if “a sufficient
number of expert and lay witnesses who have examined or observed the
defendant contemporaneous with trial” were available. Id. at 994 (citations
omitted).

   Here, the petitioner should be afforded the same relief. We therefore
grant the petition as to ground four only and remand to the trial court for
proceedings consistent with this opinion.

WARNER and KUNTZ, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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