                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

SCOTT MICHAEL SHEHEANE,               NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-4366

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 16, 2017.

An appeal from an order of the Circuit Court for Gilchrist County.
David P. Kreider, Judge.

Andy Thomas, Public Defender, Steven Seliger, Assistant Public Defender, and
Justin Karpf, Certified Legal Intern, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Jason Rodriguez, Assistant Attorney General,
and Jennifer Moore, Assistant Attorney General, Tallahassee, for Appellee.




KELSEY, J.

      In his direct appeal after pleading to three violations of probation, Appellant

argues the trial court erred in failing to make an independent determination of his

competency after finding reasonable grounds to believe he was not competent.

Although the record reflects that Appellant expressly waived a hearing and
adjudication on competency, we reverse and remand for further proceedings on

competency because the due process right to the court’s independent determination

of competency cannot be waived.

Facts.

         The facts are simple and undisputed. During the violation of probation

proceedings, defense counsel raised the issue of Appellant’s competency, and

requested a competency evaluation. The court found “reasonable grounds to

believe [Appellant] may be incompetent to proceed,” and ordered professional

evaluation. Although the court set a hearing date on competency, that hearing

never occurred, and that omission is not explained in the record.

         At a subsequent hearing set for another purpose, Appellant decided to enter

an open plea to probation violations. The plea colloquy included specific questions

and answers about the competency issue, including discussion of professional

evaluations that found Appellant legally competent, although mentally ill with

bipolar disorder and depression.1 Defense counsel stated on the record his belief

that Appellant was competent, and reviewed briefly the results of the evaluations.



1
   A defendant can be mentally ill but still legally competent. See Thompson v.
State, 88 So. 3d 312, 319 (Fla. 4th DCA 2012) (quoting cases holding that mental
illness or deficiency, low intelligence, and “bizarre, volatile, and irrational
behavior” alone do not establish legal incompetence to stand trial; rather, “the
evidence must indicate a present inability to assist counsel or understand the
charges”) (citations omitted).
                                       2
However, there is no indication that the trial judge had the competency

evaluations; and the evaluators were not present.

      Appellant agreed to waive a hearing and judicial determination of

competency. The written plea agreement reflected Appellant’s agreement that he

believed he was competent. The trial judge made no findings of Appellant’s

competency and did not adjudicate Appellant competent. The court sentenced

Appellant to twenty years’ imprisonment.

Standard of Review.

      Two competency issues are within the trial court’s discretion: the threshold

determination of whether reasonable grounds exist to question a defendant’s

competency, and the ultimate determination of whether a defendant is competent.

See Peede v. State, 955 So. 2d 480, 488-89 (Fla. 2007); Trueblood v. State, 193 So.

3d 1060, 1061 (Fla. 1st DCA 2016). In contrast, our standard of review is de novo

for the legal questions of waiver and due process in competency proceedings.

Presley v. State, 199 So. 3d 1014, 1017 (Fla. 4th DCA 2016). We find no abuse of

discretion in the trial court’s threshold determination that reasonable grounds

existed to question Appellant’s competency. 2 We find legal error in the trial court’s


2
  Defense counsel filed a written motion for competency evaluation, in compliance
with Florida Rule of Criminal Procedure 3.210. While the rule does not expressly
require a written motion, and such motions are often made orally, we observe that
the better practice is to file a compliant written motion to raise the process to the
appropriate level of attention and to create a complete record.
                                           3
failure to conduct a hearing, independently adjudicate the issue of Appellant’s

competency, and enter a written order on competency.

Procedures Cannot Be Waived.

      As we have recognized before, the procedures required to evaluate and

determine legal competence arise from due process rights. “A criminal defendant

has a procedural due process right to the observance of procedures adequate to

protect his or her right not to be tried or convicted while incompetent to stand

trial.” Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016) (citing Dougherty v.

State, 149 So. 3d 672, 676 (Fla. 2014)). These procedures are embodied in Florida

Rule of Criminal Procedure 3.210(b), which provides as follows:

              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.

      Procedurally, once a court has reasonable grounds to question a defendant’s

mental health, it must hold a hearing. Zern, 191 So. 3d at 964; Trueblood, 193 So.

3d at 1062; see also Charles v. State, 223 So. 3d 318, 329 (Fla. 4th DCA 2017)

(“A defendant cannot, either expressly or implicitly, waive the right to a

competency hearing.”) (citing Deferrell v. State, 199 So. 3d 1056, 1061 (Fla. 4th

DCA 2016)); A.L.Y. v. State, 212 So. 3d 399, 403 (Fla. 4th DCA 2017) (“In other
                                         4
words, although the parties and the court may agree that the court may decide the

issue of competency on the basis of the written reports alone, the juvenile can

neither implicitly concede nor explicitly stipulate to the ultimate issue of his own

competency.”).

Adjudication Cannot Be Waived.

      We have been clear: “an independent competency finding is a due-process

right that cannot be waived once a reason for a competency hearing has surfaced.”

Zern, 191 So. 3d at 965. Even if evaluators unanimously deem a defendant

competent, other evidence may indicate incompetence, including the court’s own

observations. See id. at 964 (citing Dougherty, 149 So. 3d at 678). It is this right to

the trial court’s independent assessment of competency that lies at the heart of the

due process requirement. The court must make an independent finding of

competence or incompetence—stipulations of competence are not permitted. Zern,

191 So. 3d at 964 (citing Dougherty, 149 So. 3d at 677); 3 see also Baker v. State,

221 So. 3d 637, 639-41 (Fla. 4th DCA 2017); Deferrell, 199 So. 3d at 1061;

Williams v. State, 169 So. 3d 221, 222-23 (Fla. 2d DCA 2015).

      We agree with the State that Appellant would appear to have waived the

issues he now raises on appeal. There could hardly be a clearer case of waiver than


3
  The State misplaces its reliance on our earlier decision in Thomas v. State, 894
So. 2d 1000 (Fla. 1st DCA 2005). In Zern, we expressly found that Dougherty
superseded Thomas. Zern, 191 So. 3d at 965 n.1.
                                        5
this—oral and written, with advice of counsel and cautionary explanations by the

trial judge—all memorialized in the court record and available for this Court’s

review. However, waiver in the incompetency context is far different from waiver

of other rights. Once reasonable grounds exist to question a defendant’s

competency, there can be no waiver of the right to independent judicial evaluation

and adjudication of competency. “[I]t is contradictory to argue that a defendant

may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have

the court determine his capacity to stand trial.” Reynolds v. State, 177 So. 3d 296,

299 (Fla. 1st DCA 2015) (quoting Pate v. Robinson, 383 U.S. 375, 384 (1966)).

      The nature of competency goes to the heart of whether a defendant has the

capacity to make a cogent, legally binding decision. To find, as the trial court did

here, there were reasonable grounds to believe Appellant may be incompetent, and

then allow that same potentially incompetent individual to waive his right to

determine competency, does not comport with due process. This is a denial of due

process, resulting in a fundamental error that requires our intervention despite

Appellant’s failure to preserve it below. See Dougherty, 149 So. 3d at 676 (“‘[T]he

failure to observe procedures adequate to protect a defendant’s right not to be tried

or convicted while incompetent to stand trial deprives him of his due process right

to a fair trial.”’) (quoting Drope v. Missouri, 402 U.S. 162, 172 (1975)); Rumph v.




                                         6
State, 217 So. 3d 1092, 1095 (Fla. 5th DCA 2017); Jackson v. State, 880 So. 2d

1241, 1243 (Fla. 1st DCA 2004). We are constrained to reverse.

Remedy.

      On remand, the court shall hold a hearing on Appellant’s competency, at

which Appellant must be present. The court shall adjudicate Appellant’s

competency and enter a written order on competency. The court may make “a

retroactive determination of competency” if “there are a sufficient number of

expert and lay witnesses who have examined or observed the defendant

contemporaneous with trial available to offer pertinent evidence at a retrospective

hearing.” See Zern, 191 So. 3d at 965. The parties may agree to the use of the

previous evaluators’ written reports, which shall be filed with the court and placed

in the record. See Dougherty, 149 So. 3d at 679 (allowing use of written reports in

lieu of live testimony if the parties agree to do so, provided trial court makes an

independent determination and enters a written order).

      If the court finds Appellant was competent at the time of the plea hearing, it

must enter a nunc pro tunc order, and the judgment and sentence need not change.

See Zern, 191 So. 3d at 965. If, however, the court cannot make a retroactive

determination or it finds Appellant was incompetent at the time of the hearing, the

court must hold a new hearing on the violations of probation, so long as Appellant

is presently competent. See id.

                                         7
    REVERSED and REMANDED with instructions.

WINOKUR and WINSOR, JJ., CONCUR.




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