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

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

v.                                    CASE NO. 1D13-1073

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed December 4, 2015.

An appeal from the Circuit Court for Duval County.
Tatiana Salvador, Judge.

Nancy A. Daniels, Public Defender, and Joanna Aurica Mauer, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Clifton Brooks appeals his convictions and sentences for sexual battery on a

person less than 12 years of age and lewd or lascivious molestation of a child less

than 12 years of age. Among other arguments raised on appeal, Brooks asserts that
the trial court failed to order an evaluation to determine his competency and failed

to inform him of his right to counsel prior to imposing sentence.

      Prior to trial, Brooks’s public defender filed a Suggestion of Mental

Incompetence to Proceed, requesting that the court issue an order for Brooks to be

examined by a court-appointed expert to determine mental competency. The motion

alleged that Brooks exhibited inappropriate behavior in the presence of counsel and

the court, appeared disoriented as to time and place, could not aid in the preparation

of his defense, did not appear to appreciate the nature of the charges against him or

the possible penalties, did not appear to understand the adversarial nature of the legal

process or the role of defense counsel, was unable to disclose pertinent facts

surrounding the alleged offenses, and was “very agitated, cannot discuss facts of his

case, talks to himself, is paranoid and fixated on issues that are unrelated to his case.”

      At a subsequent hearing, the public defender informed the court, under oath,

that when she visited Brooks, he was aggressive, talked to the wall, and danced to

music that was not playing. The presiding judge stated he was concerned with

counsel’s allegations and that, based on the court’s own observations of Brooks,

there was a basis for concern. The State concurred that an evaluation was required

and the judge orally granted a motion for continuance so an evaluation could be

conducted. But there is nothing in the record to indicate an evaluation ever occurred,




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and after a new judge and new defense counsel were assigned to the case, no further

requests for an evaluation appear to have been made.

      “[O]nce a trial court has reasonable grounds to question competency, the court

‘has no choice but to conduct a competency hearing.’” Cotton v. State, 40 Fla. L.

Weekly D2300, D2230 (Fla. 1st DCA Oct. 12, 2015) (quoting Monte v. State, 51 So.

3d 1196, 1202 (Fla. 4th DCA 2011)); see Fla. R. Crim. P. 3.210(b). 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. Reynolds v. State. 40 Fla. L. Weekly D2253, D2253 (Fla. 1st DCA Oct. 6,

2015) (citing Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014)). 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.”

Dougherty, 149 So. 3d at 679 (quoting Mason v. State, 489 So. 2d 734, 737 (Fla.

1986)).

      Because there is no indication that the trial court conducted a competency

hearing or ruled on Brooks’ competency, we are compelled to reverse the judgments

and sentences. On remand, the court shall hold a hearing to determine Brooks’s

competency to stand trial. If there is evidence that existed previously which supports

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a finding that Brooks was competent at the time of trial, the court may make a

determination of competency, nunc pro tunc, with no change in the judgment. See

Cotton, 40 Fla. L. Weekly at D2300. However, if the court cannot make a retroactive

determination, it must properly adjudicate Brooks’s present competency and, if

Brooks is competent to proceed, conduct a new trial. See id.; see also Mason, 489

So. 2d at 737 (“Should the trial court find, for whatever reason, that an evaluation of

[the defendant’s] competency at the time of the original trial cannot be conducted in

such a manner as to assure [the defendant] due process of law, the court must so rule

and grant a new trial.”).

        If the trial court is able to make a competency determination nunc pro tunc,

and no new trial is needed, the court nonetheless must conduct a new sentencing

hearing. Brooks waived his right to counsel and represented himself at trial. When

he was found guilty of the previously mentioned charges, the court sentenced him to

two concurrent life sentences. However, prior to imposing sentence, the court failed

to inform Brooks, who was still acting pro se, of his right to be represented by

counsel at sentencing.

             While a full Faretta [v. California, 422 U.S. 806 (1975)]
             inquiry need not be conducted at every stage of criminal
             proceedings, once counsel has been waived under Faretta,
             the offer of assistance of counsel must be renewed by the
             court at each critical state of the proceedings. Traylor v.
             State, 596 So. 2d 957, 968 (Fla. 1992) (holding that a
             critical stage of trial is “any stage that may significantly
             affect the outcome of the proceedings”). Sentencing is a
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              critical stage of a criminal proceeding. See, e.g., Beard v.
              State, 751 So. 2d 61, 62 (Fla. 2d DCA 1999).

Cuyler v. State, 131 So. 3d 827, 828 (Fla. 1st DCA 2014). “Failure to renew the

offer of counsel at a critical stage and conduct a Faretta inquiry if the defendant

rejects the renewed offer is per se reversible error.” Howard v. State, 147 So. 3d

1040, 1043 (Fla. 1st DCA 2014). Brooks therefore must be resentenced if no new

trial takes place.

       REVERSED and REMANDED with directions.



MARSTILLER, RAY and SWANSON, JJ., CONCUR.




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