        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          RAFAEL HERNANDEZ,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D17-2313

                               [May 16, 2018]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 31-2016-CF-
000791 A.

  Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.

                          CONCESSION OF ERROR

KLINGENSMITH, J.

   Rafael Hernandez appeals the trial court’s acceptance of his negotiated
plea and subsequent sentence. Although he asked for and was granted a
competency evaluation, Hernandez claims the trial court erred by failing
to either conduct a competency hearing or enter an order as to his
competency before accepting his plea. In accord with several recent cases
from this court on the subject, and considering the State’s concession of
error, we agree and reverse.

   Hernandez’s counsel filed a written motion under Florida Rule of
Criminal Procedure 3.210(b), and requested the appointment of an expert
to examine his client’s competency to proceed. The motion indicated that
the rule required the court to hold a competency hearing within twenty
days of the motion’s filing. Four days later, the trial court entered an order
granting the motion, and directed the appointed expert to submit a written
evaluation of Hernandez’s mental condition to each party within thirty
days of the order. However, the trial court’s order did not set a date for
the competency hearing, nor does the expert’s written evaluation appear
in the record.

   Thereafter, Hernandez entered a plea of no contest to the charged
crime. Yet there is no record that a competency hearing ever occurred,
nor does the record contain a written order establishing whether
Hernandez was competent to proceed. If appellant’s competency was ever
discussed in court prior to the acceptance of the plea, or if the motion was
ever withdrawn, such a discussion is also not in the record.

   The procedure for determining a defendant’s competency is governed
by Florida Rules of Criminal Procedure 3.210 through 3.215. Competency
requires strict adherence to the Florida Rules of Criminal Procedure. See
Dortch v. State, 2018 WL 1617082, at *1 (Fla. 4th DCA April 18, 2018). We
review the trial court’s judgment and its compliance with these rules de
novo. See Baker v. State, 221 So. 3d 637, 639 (Fla. 4th DCA 2017).

    “‘There does not appear to be any discretion on the part of the trial
court [to hold a competency hearing] once it makes the determination that
there are reasonable grounds to believe that the defendant is not mentally
competent.’” Silver v. State, 193 So. 3d 991, 993 (Fla. 4th DCA 2016)
(quoting Carrion v. State, 859 So. 2d 563, 565 (Fla. 5th DCA 2003)). “[A]
trial court’s appointing experts to evaluate a defendant’s competency
suggests there were reasonable grounds to do so.” Id. When the trial court
“has reasonable grounds to believe that a criminal defendant is not
competent to proceed, it has no choice but to conduct a competency
hearing.” Baker, 221 So. 3d at 641 (internal citations omitted). However,
“[a] full, formal competency hearing might not be required” in some
circumstances. Id. at 641 n.1 (internal citations omitted).

   We reverse. But, if on remand the trial court can make a nunc pro tunc
finding as to Hernandez’s competency “based upon the existence of
evaluations performed contemporaneous with [the acceptance of the plea]
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.” Baker, 221 So. 3d at 641-42; accord Dortch,
2018 WL 1617082, at *2. “If, however, the court cannot determine
appellant’s competency consistent with due process guarantees, the court
should vacate the plea and sentence.” Bain v. State, 211 So. 3d 139, 140
(Fla. 4th DCA 2017); accord Dortch, 2018 WL 1617082, at *2.

   Reversed and remanded with instructions.


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DAMOORGIAN and FORST, JJ., concur.

                         *           *    *

  Not final until disposition of timely filed motion for rehearing.




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