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

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

v.                                  CASE NO. 1D14-4006

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed April 27, 2016.

An appeal from the Circuit Court for Escambia County.
Ross M. Goodman, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, and Rhoderick Lewis, pro se, for Appellant.

Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney
General, Tallahasee, for Appellee.




PER CURIAM.

      Appellant seeks review of his judgment and sentence for various offenses

following his nolo contendere plea. He contends that the trial court erred in

accepting his plea without conducting a competency hearing to determine that his
competency had been restored. Based on the state’s proper concession of error, we

reverse and remand.

      The trial court previously declared Appellant incompetent. Thereafter, the

parties stipulated to Appellant’s competency, and Appellant pled nolo contendere

and was sentenced to a lengthy prison term. Appellant timely filed a motion for

postconviction relief in which he raised the issue of his competency. The trial

court found that accepting the stipulation of competency was error and vacated

Appellant’s judgment and sentence. Approximately six months later, in November

2012, after Appellant again pled nolo contendere, the trial court accepted the plea

and imposed the same sentence.         Although the trial court had ordered a

competency evaluation of Appellant several months before the second plea and

sentencing hearing, the record does not reflect that the court held a competency

hearing, reviewed the expert evaluation, or entered a written order determining

Appellant’s competency prior to the resentencing hearing.

      Once a defendant is declared incompetent, no material stage of a criminal

prosecution, including entry of a plea and sentencing, may proceed.            See

Dougherty v. State, 149 So. 3d 672, 677-78 (Fla. 2014); Ross v. State, 155 So. 3d

1259 (Fla. 1st DCA 2015); Fla. R. Crim. P. 3.210. Therefore, because the trial

court did not follow the required procedures for declaring Appellant competent to

enter his plea and to be sentenced, Appellant’s judgment and sentence must be

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reversed. On remand, the trial court must hold a hearing to determine Appellant’s

competency to proceed. If evidence existing at the time of the plea supports a

finding that Appellant was competent in November 2012 when he entered his

second plea and was resentenced, then the trial court may make a retroactive

determination of competency with no change to Appellant’s judgment and

sentence. See Dougherty, 149 So. 3d at 679. If the trial court cannot make this

determination, it must conduct a proper determination of Appellant’s competency

and, if the court finds Appellant competent, the case must proceed to trial or a new

plea. See id.; Brooks v. State, 180 So. 3d 1094 (Fla. 1st DCA 2015); Cotton v.

State, 177 So. 3d 666 (Fla. 1st DCA 2015); Reynolds v. State, 177 So. 3d 296 (Fla.

1st DCA 2015).

      REVERSED and REMANDED with instructions.

WOLF, WETHERELL, and KELSEY, JJ., CONCUR.




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