        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                        ROBBIE WILLIAM JOHNSON,
                                Appellant,

                                         v.

                             STATE OF FLORIDA,
                                  Appellee.

                                  No. 4D17-935

                              [September 20, 2018]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 56-2015-CF-002154-
B.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    The appellant, Robbie William Johnson, appeals his judgment and
sentence, contending the trial court erred in five ways.1 We affirm on four
of the issues without discussion. However, we agree with his contention
that the trial court erred by failing to make a competency determination
prior to trial. On that issue, we reverse and remand for further
proceedings.

                                   Background




1 Johnson contends the trial court erred by (1) failing to conduct a competency
hearing before proceeding to trial; (2) permitting evidence of his religious beliefs;
(3) overruling his relevancy objection to evidence of his religious practices; (4)
overruling his objection to the victim’s testimony regarding the discovery of her
mother’s death; and (5) denying his motion for mistrial based on improper closing
argument by the State.
   The State charged Johnson with eighty-seven counts of sexual battery
by a person with familial or custodial authority on a victim aged twelve or
older but less than eighteen, for various sexual acts committed from
January 2009 through July 2012.

   Prior to trial, the trial court granted defense counsel’s motion to appoint
an expert to evaluate Johnson’s competence. However, the order did not
set a hearing date to determine competency. The appointed expert
submitted a report finding Johnson competent to proceed. Trial counsel
did not schedule a hearing on the motion, and the parties failed to address
Johnson’s competency at various pre-trial hearings.

   A jury convicted Johnson on all counts as charged. The trial court
entered a judgment and sentence imposing eighty-seven consecutive life
sentences. Johnson gave notice of appeal.

                             Appellate Analysis

   The issue of whether the trial court fundamentally erred in failing to
hold a competency hearing “presents a pure question of law and thus is
subject to de novo review.” Presley v. State, 199 So. 3d 1014, 1017 (Fla.
4th DCA 2016).

   Both parties acknowledge that the trial court did not hold a competency
hearing after ordering a competency evaluation.

    A court must conduct a competency hearing if, at any material stage of
the criminal proceeding, it has “reasonable ground to believe that the
defendant is not mentally competent to proceed.” Fla. R. Crim. P. 3.210(b).
“[T]he trial court has the responsibility to conduct a hearing for
competency to stand trial whenever it reasonably appears necessary,
whether requested or not, to ensure that a defendant meets the standard
of competency.” Lane v. State, 388 So. 2d 1022, 1025 (Fla. 1980). Florida
Rule of Criminal Procedure 3.210(b) provides:

      (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

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      state and the defendant may be present at any examination
      ordered by the court.

(emphasis added).

   Johnson argues that because the trial court was required to conduct a
competency hearing within twenty days of entering its order appointing an
expert and a competency hearing was not conducted in conformity with
Rule 3.210(b), reversal is required.

   The State argues that “[i]n order to trigger the hearing requirement, the
court must have a reasonable belief that Defendant may be incompetent
to proceed.” The State points out that the trial court’s order does not
indicate that it had a reasonable belief Johnson may be incompetent. The
State alleges that the motion did not provide reasonable belief to the court,
and “the order for evaluation may have been entered in an abundance of
caution, merely in response to the filing of the motion.”

    However, speculation on the trial court’s reasonable belief is
unnecessary, because “a trial court’s appointing experts to evaluate a
defendant’s competency suggests there were reasonable grounds to do so.”
Silver v. State, 193 So. 3d 991, 993 (Fla. 4th DCA 2016). The trial court’s
“order granting counsel’s motion for a competency evaluation on its own
compelled a competency hearing.” Baker v. State, 221 So. 3d 637, 641
(Fla. 4th DCA 2017).

   “Here, the trial court did not hold the necessary competency hearing
and make an independent determination of appellant’s competency . . . .”
Presley, 199 So. 3d at 1018. However, as Johnson concedes, he is not
automatically entitled to a new trial. “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.” Dougherty v. State,
149 So. 3d 672, 679 (Fla. 2014).

   On remand, the trial court should make a finding as to whether it can
determine Johnson’s competency nunc pro tunc. Presley, 199 So. 3d at
1019. As we directed in Baker,

      [I]f the [trial] court can make a nunc pro tunc finding as to
      appellant’s competency based upon the existence of
      evaluations performed contemporaneous with trial and
      without relying solely on a cold record, and can do so in a
      manner which abides by due process guarantees, then it
      should do so and enter a corresponding written order.
      However, if the [trial] court finds, for any reason, that an

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      evaluation of appellant’s competency at the time of trial
      cannot proceed in a way that ensures appellant’s due process
      rights, then the [trial] court should adjudicate [his] current
      competency and, if [he] is competent, conduct a new trial on
      all counts.

Baker, 221 So. 3d at 641-42 (citations omitted).

   Affirmed in part, reversed in part, and remanded for further proceedings.

LEVINE and FORST, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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