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

WILMARIO TRUEBLOOD,                  NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-2477 & 14-2478

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 15, 2016.

An appeal from the Circuit Court for Leon County.
Jackie L. Fulford, Judge.

Melissa Joy Ford, Assistant Conflict Counsel, Office of Criminal Conflict and
Civil Regional Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Quentin Humphrey, Assistant Attorney
General; and Trisha Meggs Pate, Bureau Chief-Tallahassee Criminal Appeals,
Tallahassee, for Appellee.



PER CURIAM.

      In these consolidated cases, Wilmario Trueblood appeals his judgments and

sentences for two counts of burglary and one count of grand theft. He argues that

the trial court erred by failing to hold a competency hearing after finding

reasonable grounds to appoint an expert who conducted an examination of
Trueblood. He also claims the trial court abused its discretion by admitting

testimony about other crimes he committed. We affirm the latter issue without

comment, but agree that it was error to not hold a competency hearing.

      On April 9, 2013, defense counsel filed a motion for competency evaluation

in each case pursuant to Rules 3.210 and 3.211(a) and (b), Florida Rules of

Criminal Procedure. Defense counsel alleged that Trueblood “has an extensive

mental history” and that counsel did not believe he was “capable of assisting in the

preparation of his defense, capable of testifying in his own defense, or capable of

maintaining appropriate courtroom behavior.” Defense counsel averred that the

motion was made in good faith and on reasonable grounds. The trial court granted

the motion, stating that the issue of competency had “been raised in accordance

with the provisions of Rule 3.210(b), Fla. R. Crim. P.” and the trial court had

“reasonable grounds to believe that the Defendant may be incompetent to

proceed.” The trial court appointed Dr. D’Errico to examine him. After an

examination, Dr. D’Errico recommended the trial court find Trueblood competent.

No hearing was held, and the trial court made no oral or written finding on

Trueblood’s competency to proceed.

      Defense counsel then filed a second motion to determine competency,

stating:

      Although Dr. D’Errico found the Defendant competent to proceed, the
      undersigned is having a hard time believing that the defendant is
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      competent to proceed based on conversations with the undersigned
      and would request a second opinion.

A hearing on the second motion was held, during which defense counsel explained

that even though Dr. D’Errico found Trueblood competent, counsel doubted the

finding given the nature of the case since Trueblood rejected a thirty-five year plea

offer, despite scoring a minimum of sixty-nine years and a maximum of 735. So

the trial court conducted a plea colloquy of sorts, but did not conduct a competency

hearing. The trial court ultimately denied the motion for a second competency

evaluation. Defense counsel filed a motion seeking to renew the request for

competency evaluation without further arguments and in order to preserve the issue

for appeal, which was denied.

      A court’s decision as to whether a competency hearing or a new evaluation

is necessary is reviewed for abuse of discretion. Rodgers v. State, 3 So. 3d 1127,

1132 (Fla. 2009) (providing standard of review for denial of hearing); see Fla. R.

Crim. P. 3.210(b) (providing that the court “may order” examination by experts);

Boggs v. State, 575 So. 2d 1274, 1275 (Fla. 1991) (holding that trial court should

have ordered additional evaluations). However, if a “reasonable ground to believe

that the defendant is not mentally competent to proceed” exists, then the

requirement that the court hold a hearing is mandatory. Boggs, 575 So. 2d at 1275;

Cotton v. State, 177 So. 3d 666, 668 (Fla. 1st DCA 2015) (“[O]nce a trial court has

reasonable grounds to question competency, the court has no choice but to conduct
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a competency hearing.”).

      Trueblood correctly claims that he was due a competency hearing after the

first motion and corresponding competency report and likens his case to Reynolds

v. State, 177 So. 3d 296 (Fla. 1st DCA 2015), wherein this Court explained,

      [T]he trial court apparently had reasonable grounds to believe that
      Appellant was not competent to proceed because the court appointed
      an expert to evaluate Appellant. Although the expert evidently
      determined that Appellant was competent, the trial court did not hold
      a hearing on the issue or enter an order finding Appellant competent
      to proceed before accepting his plea admitting to the probation
      violation. This was error.

Id. at 298. Similarly, the trial court here found reasonable grounds to appoint an

expert, who then assessed Trueblood and found him competent. But “reports of

experts are merely advisory to the [trial court], which itself retains the

responsibility of the [competency] decision.” Peede v. State, 955 So. 2d 480, 488

(Fla. 2007). The trial court never held a competency hearing and never made a

competency determination. The error occurred at that point, entitling Trueblood to

relief. The plea colloquy associated with the second motion did not cure the

existing error.

      [O]nce the trial court enters an order appointing experts upon a
      reasonable belief that the defendant may be incompetent, a
      competency hearing must be held. We cannot determine why no
      hearing took place . . . or why the case was originally called for trial
      on . . . a date prior to the competency hearing. For whatever reason,
      petitioner apparently was not examined by the second mental health
      expert, and a competency hearing was never held.

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Cochran v. State, 925 So. 2d 370, 373 (Fla. 5th DCA 2006) (granting petition for

writ of habeas corpus alleging ineffective assistance of counsel for failing to raise

this issue on appeal). For clarity, the hearing on the second motion for competency

evaluation was to determine whether or not there were reasonable grounds to

believe that Trueblood may be incompetent in order to justify an examination—

now a second examination. The court did not find such grounds. But regarding the

first motion for competency evaluation, the trial court already found that

reasonable grounds existed and appointed an expert. A competency hearing was

the appropriate next step after the evaluation was conducted. As this Court

explained in Brooks v. State, 180 So. 3d 1094, 1095-96 (Fla. 1st DCA 2015),

      If the trial court fails to hold a competency hearing or enter a written
      order of competency, reversal is required; however, a new trial is
      required only if the trial court is unable to conduct a nunc pro tunc
      evaluation of the defendant’s competency at the time of the original
      trial. A nunc pro tunc competency evaluation can be done where 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.

(Internal citation and quotation marks omitted); see also Zern v. State, 2016 WL

2750410 (May 12, 2016) (citing Brooks). In both Brooks and Zern the failure to

hold a competency hearing resulted in reversals, as is required here as well.

       AFFIRMED in part, REVERSED and REMANDED in part with
instructions.

ROBERTS, C.J., MAKAR, and OSTERHAUS, JJ., CONCUR.

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