       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          MARCUS PITTMAN,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D16-4278

                         [ September 20, 2018 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No. 12-13755CF10A.

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

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   After a jury trial, appellant was acquitted of second degree murder but
convicted of two counts of dealing in stolen property. We reverse and
remand for a nunc pro tunc competency determination, if it is possible
under the circumstances. As to all other issues raised, we affirm without
further comment.

    In June 2013, the trial court entered an order appointing an expert to
determine appellant’s competency to proceed. At the ensuing hearing, the
trial court stated: “I have the competency report in the file. Says he’s
competent.” The following exchange then took place:

         [DEFENSE COUNSEL]: I’ll stipulate, right, Marcus?

         DEFENDANT: Yes.

         THE COURT: Well, he’s competent.

However, the trial court did not enter a written order finding appellant to
be competent.

    On appeal, appellant challenges the trial court’s competency
determination, arguing that the trial court erred by: (1) allowing the
defense to stipulate as to his competency; (2) failing to hold a competency
hearing or make an independent determination of competency; and (3)
failing to enter a written order finding him to be competent.

   The issue of whether a trial court fundamentally erred in failing to hold
an adequate competency hearing is reviewed de novo. Presley v. State,
199 So. 3d 1014, 1017 (Fla. 4th DCA 2016).

    A defendant cannot stipulate to the ultimate issue of competency, as
the trial court has the duty to make an independent determination of the
defendant’s competency to proceed. Dougherty v. State, 149 So. 3d 672,
678 (Fla. 2014). However, when the parties agree, the trial court may
determine the issue of competency on the basis of written reports alone.
Id. at 679. If the trial court finds the defendant competent to proceed, it
must enter a written order so finding. Id. at 678.

   “A status hearing may constitute a sufficient competency hearing if the
court reviews a written competency evaluation at the parties’ direction and
makes an independent finding that the defendant is competent to
proceed.” Presley, 199 So. 3d at 1018. Moreover, “[t]he stipulation to
determining the issue based on the expert’s written reports may be inferred
from the context.” Rumph v. State, 217 So. 3d 1092, 1095 (Fla. 5th DCA
2017).

   For example, in Charles v. State, 223 So. 3d 318 (Fla. 4th DCA 2017),
we held that, although there was not an express stipulation to decide the
issue of competency solely on the basis of the expert’s report, it was
apparent from the record that the parties and the judge had agreed to
decide the issue of competency on the basis of the written report alone. 1

   By contrast, where the parties have not agreed to decide the issue of
competency on the basis of the expert’s written report alone, it is error for
a trial court to find the defendant competent based on the parties’
stipulation to the defendant’s competency. See S.B. v. State, 134 So. 3d
528, 529–30 (Fla. 4th DCA 2014) (holding that the trial court erred in

1 In Charles, the parties never stipulated to the ultimate issue of competency, it
was clear from the record that the trial court made an independent determination
of competency based on the written report, and the parties declined the trial
court’s offer of addressing the competency issue further. Id. at 329–30.

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finding the defendant competent based on the parties’ stipulation to the
defendant’s competency and the court’s own review of the doctor’s report,
as “neither party stipulated to the contents and admission of the doctor’s
report,” and there was never “any form of agreement between the parties
and the judge to decide the issue of competency on the basis of the written
report alone”); Hanna v. State, 232 So. 3d 1026, 1027 (Fla. 4th DCA 2017)
(holding that the trial court’s reliance on the defendant’s stipulation to his
competency was erroneous, and declining to infer that the defendant
stipulated to the contents of the report where “neither party specifically
stipulated to the report, but instead, plainly stipulated to the
competency”).

    The present case is governed by S.B. and Hanna. Here, the parties did
not stipulate to the contents of the expert’s report, and there was never
any agreement between the parties to allow the judge to decide the issue
of competency on the basis of the written report alone. Instead, appellant
merely stipulated to the ultimate determination of competency. As our
court has explained: “Although it can be argued that by stipulating to the
report’s determination of competency, the parties stipulated to the report
and agreed to determine competency based on the report alone, there is
nothing in the case law to suggest that such implicit stipulations and
agreements are sufficient to satisfy rule 3.212.” S.B., 134 So. 3d at 530.

   Additionally, it is unclear whether the trial court made an independent
determination of appellant’s competency. Although the record reflects that
the trial court reviewed the expert’s report and made the statement, “Well,
he’s competent,” the trial court’s finding of competency may have been
based, at least in part, on appellant’s stipulation to his own competency.
On this record, it is impossible to tell whether the trial court truly made
an independent determination of competency. 2

   In sum, under our court’s case law, appellant’s stipulation to his own
competency did not constitute an agreement between the parties to allow
the judge to decide the issue of competency on the basis of the written
report alone. Thus, because the parties did not agree to decide the issue
of competency on the basis of the written report alone and because it is
unclear whether the trial court made an independent determination of
appellant’s competency, we reverse and remand for a nunc pro tunc
competency determination, if it is possible. See, e.g., Baker v. State, 221

2 We note that the judge who presided at trial was not the same judge who
determined appellant’s competency in 2013. Additionally, the trial judge who
determined appellant’s competency did not have the benefit of the Florida
Supreme Court’s decision in Dougherty.

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So. 3d 637, 641–42 (Fla. 4th DCA 2017). If the trial court cannot make a
retrospective competency determination or finds that appellant was
incompetent to proceed, then the court must order a new trial.

   Affirmed in part, Reversed in part and Remanded with instructions.

LEVINE and FORST, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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