          Supreme Court of Florida
                                   ____________

                                   No. SC12-2365
                                   ____________

                          BERNARD J. DOUGHERTY,
                                Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                 [October 16, 2014]

LABARGA, C.J.

      Bernard Joseph Dougherty seeks review of the decision of the Fifth District

Court of Appeal in Dougherty v. State, 96 So. 3d 984 (Fla. 5th DCA 2012), on the

ground that it expressly and directly conflicts with a decision of the Fourth District

Court of Appeal in Macaluso v. State, 12 So. 3d 914 (Fla. 4th DCA 2009), on a

question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the

following reasons, we quash in part the Fifth District’s decision in Dougherty and

approve Macaluso to the extent it is consistent with this opinion because a

defendant’s stipulation to his own competency does not absolve the trial court from

its duty to independently make a determination of a defendant’s competency to
proceed. As discussed in more detail below, however, Dougherty’s claim is

procedurally barred.

                                       FACTS

      Dougherty was charged with resisting an officer with violence; acquiring a

controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge;

and criminal use of personal identification information in March 2000.1 Shortly

thereafter, the trial court entered an order appointing three experts for a

competency determination.2 In August 2002, the court entered an order declaring

Dougherty incompetent to proceed to trial, and Dougherty was committed to the

Florida Department of Children and Families (DCF). In the order, the trial court

noted that Dougherty was diagnosed with psychotic disorder and could not

presently understand the charges or allegations.

      On January 24, 2003, the trial court entered an order to transfer Dougherty to

the Florida Department of Corrections because DCF determined that Dougherty no

longer met the criteria for commitment. On February 28, 2003, Dougherty




      1. He failed to appear for the first scheduled trial on September 9, 2000,
because he fled to Pennsylvania. The State became aware of his whereabouts
because he was arrested in Pennsylvania.

      2. The trial court appointed the following three experts: William Riebsame,
Ph.D., Howard Bernstein, Ph.D., and Burton Podnos, M.D.


                                         -2-
appeared before the court for a status hearing regarding competency. The

following is the entire transcript of the status hearing:

             THE COURT: State of Florida versus Bernard Dougherty.
             MR. [JACK] GILMORE: Your Honor, this is Mr. Dougherty
      who just returned from the State Hospital. This would be a comp
      review.
             Apparently, the hospital feels Mr. Dougherty is capable of
      going forward and we would request that since they feel he’s capable
      of going forward, I talked to Mr. Dougherty briefly this morning, and
      he feels he’s ready to go forward. We would like to have this set for
      the next docket sounding.
             THE COURT: State?
             THE STATE: April 21st.
             THE COURT: Set for docket sounding then on April 21st as
      requested.

      Subsequently, on July 10, 2003, defense counsel filed a motion to determine

Dougherty’s competency to stand trial pursuant to Florida Rule of Criminal

Procedure 3.210(a). The trial court granted the motion and appointed three experts

for a competency determination.3 The experts were directed to submit written

reports to the court, with copies to the attorneys, on September 3, 2003. On

September 10, 2003, the parties appeared before the Court for a competency

hearing. The following is the entire transcript of this proceeding:

            THE COURT: This is the matter of the State of Florida versus
      Bernard Dougherty. Who’s got that case?
            MR. [JAMES] MCMASTER [STATE ATTORNEY]: Judge,
      Ms. Cobrand and I. It should not be that complicated.

     3. The three experts were: Dr. Riebsame, Dr. Bernstein, and David
Greenblum, Ph.D.


                                          -3-
             MS. [SHEENA] COBRAND [DEFENSE ATTORNEY]: We
      did get the evaluations back from the three doctors, so we will
      stipulate he is competent to proceed.
             THE COURT: Very good. We’ll put it on just the regular
      docket sounding then.
             MR. MCMASTER: It’s already scheduled for October 8 docket
      sounding.
             MS. COBRAND: Judge, if we can do the 10/8 one, that way we
      can get everything together and we’ll be ready to go.
             THE COURT: What are his pending charges?
             MR. MCMASTER: Resisting an officer with violence,
      acquiring controlled substance from misrepresentation and fraudulent
      use of personal ID.
             THE COURT: So that might not be able to be resolved; does it?
             MR. MCMASTER: We’ll bring in the officer. He is a [prison
      releasee reoffender] criminal.
             THE COURT: Okay. All right.

The court did not refer to Dougherty’s competency again and did not enter a

written order determining that Dougherty was competent to proceed to trial.

Nevertheless, the matter proceeded to a two-day jury trial on the charges of

resisting arrest with violence, and acquiring a controlled substance by

misrepresentation, fraud, forgery, deception, or subterfuge. The jury found

Dougherty guilty of both charges.4 Dougherty was sentenced to prison for

consecutive ten-year sentences as a habitual felony offender.

      On April 19, 2009, Dougherty filed an amended motion to correct an illegal

sentence. The trial court summarily denied the amended motion and Dougherty

appealed. The Fifth District reversed in part, finding that the trial court erred in

      4. The State dismissed the criminal use of personal identification charge.


                                         -4-
sentencing Dougherty as a habitual felony offender for the charge of acquiring a

controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.

On July 2, 2010, nearly seven years after the September 10, 2003, competency

hearing, Dougherty appeared for resentencing. At this resentencing hearing,

defense counsel raised the issue of Dougherty’s competency, alleging that

Dougherty had never been evaluated and did not have a hearing regarding

competency. On August 11, 2010, Dougherty again appeared at a hearing for

resentencing, and again defense counsel raised the issue of Dougherty’s

competency. The trial court, however, did not consider the competency issue.

Instead, the court resentenced Dougherty, finding that Dougherty was a habitual

felony offender as to count one—resisting an officer with violence. The trial court

reduced the sentence for count two— acquiring a controlled substance by

misrepresentation, fraud, forgery, deception, or subterfuge—to five years, to run

consecutively with the sentence of count one.

      Dougherty raised the issue of his competency on appeal to the Fifth District.

Dougherty, 96 So. 3d at 984. Dougherty argued that the lack of a written order

adjudicating him competent required reversal of his conviction and a new trial. Id.

at 985. He also argued that he did not receive a proper and sufficient hearing. Id.

The Fifth District held that the lack of a written order could be cured without a new

trial because it was apparent from the record that the trial court found Dougherty


                                        -5-
competent based on the representation and stipulation of defense counsel. Further,

the Fifth District held that the hearing was sufficient because the trial court was

authorized to base its competency finding on written evaluations stipulated to by

Dougherty at a properly scheduled competency hearing. Id.

      Dougherty filed a timely notice to invoke the discretionary jurisdiction of

this Court alleging conflict with Macaluso, in which the defendant was found

incompetent and sent to a facility. 12 So. 3d at 915. Five months later, the court

held a hearing at which defense counsel informed the court that Macaluso had been

found competent based on evaluations obtained by the Public Defender’s Office.

Id. Without additional evidence or a hearing, the court declared Macaluso

competent to proceed to trial. Macaluso’s attorney later informed the court before

jury selection that facility doctors had also found him competent to be tried. After

he was found guilty of multiple offenses, he appealed the conviction on the

grounds that the competency issue was improperly decided. The Fourth District

held that the conviction had to be set aside and Macaluso was entitled to a new trial

if determined to be competent because Florida Rule of Criminal Procedure

3.212(c)(7) did not contemplate lawyers stipulating to restored competency

without an evidentiary hearing.5 Id. The Fourth District reasoned that it had


       5. In Jones v. State, 125 So. 3d 982, 984 (Fla. 4th DCA 2013), the Fourth
District explained that Macaluso “recognized that [r]ule 3.212 does not sanction
stipulations to the ultimate issue of competency.” However, the district court

                                         -6-
previously determined that a court must hold a hearing and enter an order finding

the defendant competent before proceeding to trial. Id. Accordingly, Dougherty

and Macaluso conflict because the district courts reached different conclusions on

whether a court can determine a defendant to be competent based on the stipulation

of counsel, and whether a new trial is necessary under such circumstances. We

now turn to the merits.

                                    ANALYSIS

      Before discussing the proper procedures to be followed in competency

determinations, we note that Dougherty raised this issue for the first time at a

resentencing hearing on remand after the Fifth District reversed the trial court’s

summary denial of his amended motion to correct an illegal sentence, which

occurred nearly seven years after his original competency hearing before trial.

Thus, Dougherty’s claim is procedurally barred because he did not raise this issue

on direct appeal. See Thompson v. State, 88 So. 3d 312, 316 (Fla. 4th DCA 2012)

(“In Florida state courts, neither a procedural nor a substantive competency claim

of trial court error may be raised in a postconviction motion.” (citing Nelson v.

State, 43 So. 3d 20, 33 (Fla. 2010))); see also Wickham v. State, 124 So. 3d 841,

861-62 (Fla. 2013); Bundy v. State, 538 So. 2d 445, 447 (Fla. 1989). As a result,

acknowledged that parties may stipulate to expert reports in lieu of testimony at a
competency hearing to form the evidence upon which the trial court may rely to
decide the ultimate issue of competency.


                                         -7-
we do not address application of our holding to the specific circumstances of his

case. We resolve the conflict, however, to stress the importance of competency

determinations to criminal proceedings and to ensure that courts follow the specific

procedures outlined in Florida Rules of Criminal Procedure 3.210-3.212. Indeed, it

is necessary for courts to observe the specific hearing requirements set forth in the

rules in order to safeguard a defendant’s due process right to a fair trial and to

provide the reviewing court with an adequate record on appeal.

                       Competency Determination Requirements

      In Drope v. Missouri, 420 U.S. 162, 172 (1975), the United States Supreme

Court recognized that “the 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.” Procedural due process

requires adequate notice and an opportunity to be heard “at a meaningful time and

in a meaningful manner.” Jones v. State, 740 So. 2d 520, 523 (Fla. 1999) (quoting

Boddie v. Connecticut, 401 U.S. 371, 378 (1971)). Further, “ ‘[i]t is well-settled

that a criminal prosecution may not move forward at any material stage of a

criminal proceeding against a defendant who is incompetent to proceed.’ ”

McCray v. State, 71 So. 3d 848, 862 (Fla. 2011) (quoting Caraballo v. State, 39 So.

3d 1234, 1252 (Fla. 2010)); see Fla. R. Crim. P. 3.210(a). “An individual who has

been adjudicated incompetent is presumed to remain incompetent until adjudicated


                                         -8-
competent to proceed by a court.” Jackson v. State, 880 So. 2d 1241, 1242 (Fla.

1st DCA 2004) (citing Holland v. State, 634 So. 2d 813, 815 (Fla. 1st DCA 1994));

see also Corbin v. State, 176 So. 435 (Fla. 1937); Erickson v. State, 965 So. 2d 294

(Fla. 5th DCA 2007); and Molina v. State, 946 So. 2d 1103 (Fla. 5th DCA 2006).

      Florida Rules of Criminal Procedure 3.210-3.212 were enacted to set forth

the required competency hearing procedures for determining whether a defendant

is competent to proceed or has been restored to competency. See Mora v. State,

814 So. 2d 322, 333 (Fla. 2002). Pertinent to this case are rules 3.210(b) and

3.212(a)-(b), (c)(3), (c)(5)-(7).

      Rule 3.210(b) provides:

       If, at any material stage[6] 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. . . .




       6. Florida Rule of Criminal Procedure 3.210(a) defines a “material stage” as
“the trial of the case, pretrial hearings involving questions of fact on which the
defendant might be expected to testify, entry of a plea, violation of probation or
violation of community control proceedings, sentencing, hearings on issues
regarding a defendant’s failure to comply with court orders or conditions, or other
matters where the mental competence of the defendant is necessary for a just
resolution of the issues being considered. . . .”


                                        -9-
(Footnote added). As we stated in Fowler when addressing the proper procedures

to rule on the question of competency, albeit interpreting an earlier version of the

rule referring to insanity, “[t]he framers of the rule . . . obviously did not regard

lightly the necessity for a hearing” by their use of the terms “shall” and

“immediately.” Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971). Pursuant to rule

3.212(a), the experts preparing the reports may be called by the court or either

party and “shall be deemed court witnesses.” Rule 3.212(b) then provides that the

“court shall first consider the issue of the defendant’s competency to proceed. If

the court finds the defendant competent to proceed, the court shall enter its order so

finding and shall proceed.” The State concedes that entry of an order under the

rule refers to entry of a written order as opposed to an oral pronouncement. See

also Molina, 946 So. 2d at 1105 n.1.

      If a defendant is found incompetent, the defendant may be committed for

treatment to restore his competency to proceed. Fla. R. Crim. P. 3.212(c)(3). If

the facility’s administrator determines that the defendant no longer meets the

criteria for commitment or has become competent to proceed, rule 3.212(c)(5)

provides that the treatment facility’s administrator must notify the court in a

written report with copies furnished to all parties. The trial court shall then hold a

hearing within thirty days of the receipt of any such report from the administrator

of the facility. Fla. R. Crim. P. 3.212(c)(6). “If, at any time after such


                                         - 10 -
commitment, the court decides, after hearing, that the defendant is competent to

proceed, it shall enter its order so finding and shall proceed.” Fla. R. Crim. P.

3.212(c)(7).

      Generally, a proper hearing to determine whether competency has been

restored after a period of incompetence requires “the calling of court-appointed

expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a

determination of competence to proceed, and the entry of an order finding

competence.” Jones v. State, 125 So. 3d 982, 983-84 (Fla. 4th DCA 2013)

(quoting Samson v. State, 853 So. 2d 1116, 1117 (Fla. 4th DCA 2003)). The plain

language of rule 3.212(a), however, does not require the calling of expert witnesses

or any additional witnesses because the word “may” is used. Further, “where the

parties and the judge agree, the trial Court may decide the issue of competency on

the basis of the written reports alone.” Fowler, 255 So. 2d at 515; see Jones, 125

So. 3d at 984. Nevertheless, these written reports are advisory to the trial court,

“which itself retains the responsibility of the decision.” McCray, 71 So. 3d at 862

(quoting Hunter v. State, 660 So. 2d 244, 247 (Fla. 1995) (citing Brown v. State,

245 So. 2d 68, 70 (Fla. 1971), vacated in part on other grounds, 408 U.S. 938,

(1972) (noting that the purpose of the provisions of rule 1.210(a)—an older

provision with very similar language—was “to aid and assist the Court, so as to

enable the Court wisely to determine whether . . . proceedings . . . must be . . .


                                         - 11 -
stayed during a period of necessary treatment.”))); see also Alexander v. State, 380

So. 2d 1188, 1190 (Fla. 5th DCA 1980) (citing Butler v. State, 261 So. 2d 508 (Fla.

1st DCA 1972) (noting that competence to stand trial is a legal question and not a

medical question)). Accepting a stipulation improperly absolves the trial court

from making an independent determination regarding a defendant’s competency to

stand trial.

       We note that our prior cases, in which we held that the trial court retains the

responsibility to determine if the defendant is competent, generally involved

conflicting testimony or evidence regarding a defendant’s competency. However,

nothing in our precedent or the State’s argument persuades us that a defendant can

stipulate to the ultimate issue of competency, even where the written reports reach

the same conclusion.7 Even in a situation where all the experts opine that a

defendant is competent, the trial court could presumably disagree based on other

evidence such as the defendant’s courtroom behavior or attorney representations.

Further, the language of rule 3.212(c)(7) and rule 3.212(b) discussed above does

not allow parties to stipulate to the issue of competency. See Jones, 125 So. 3d at

984 (citing Macaluso, 12 So. 3d at 915). In particular, the rules do not contemplate

       7. Although the State argues that the three experts concluded that Dougherty
was feigning incompetence, this Court cannot independently verify the accuracy of
that representation because the record is devoid of information on the content of
the expert reports, the experts did not testify, and the trial court did not enter a
written order determining Dougherty was competent to proceed.


                                        - 12 -
such stipulations where the trial court has previously concluded that a particular

defendant is incompetent and his competency has yet to be restored.8 Thus, based

on our precedent and the procedural rules for competency determinations, a

defendant cannot stipulate that he is competent, particularly where he has been

previously adjudicated incompetent during the same criminal proceedings.

Further, if a trial court finds that a defendant is competent to proceed, it must enter

a written order so finding. Having concluded that a defendant cannot stipulate to

his own competency, and that a trial court must enter a written order if the

defendant is found competent, we now turn to the remedy for a violation of these

procedures.

                                       Remedy

      Generally, the remedy for a trial court’s failure to conduct a proper

competency hearing is for the defendant to receive a new trial, if deemed

competent to proceed on remand. Pate v. Robinson, 383 U.S. 375, 386-87 (1966);

Tingle v. State, 536 So. 2d 202, 204 (Fla. 1988) (noting that a due process

violation regarding a defendant’s competency generally results in a new trial

       8. Under those circumstances, a defendant previously adjudicated
incompetent would be stipulating to the issue of his own competency, which is an
issue essential to the integrity of the criminal proceedings. See People v. Lesly T.,
930 N.Y.S.2d 845, 846 (N.Y. Sup. Ct. 2011) (citing Pouncey v. United States, 349
F.2d 699 (D.C. Cir. 1965), and People v. Harris, 14 Cal.App.4th 984, 18 Cal. Rptr.
2d 92 (Cal. Ct. App. 1993)). Thus, we do not find it appropriate to endorse such a
procedure.


                                         - 13 -
because “a hearing to determine whether a defendant was competent at the time he

was tried generally cannot be held retroactively.”). A new trial is not always

necessary where the issue of competency was inadequately determined prior to

trial; a retroactive determination of competency is possible. See Fowler, 255 So.

2d at 515 (“[O]ur finding in this regard does not require vacation of the judgment

and sentence entered against defendant at this time.”). However, as we have

previously noted, the United States Supreme Court has cautioned that determining

competency to stand trial retrospectively is inherently difficult, even under the

most favorable circumstances. Jones, 740 So. 2d at 523 (citing Drope, 420 U.S. at

183). “The chances of conducting a meaningful retrospective competency hearing

decrease when experts must rely on a cold record.” Jones, 740 So. 2d at 523

(citing Mason v. State, 489 So. 2d 734, 737 (Fla. 1986)). Nevertheless, in Mason,

this Court held that a nunc pro tunc competency evaluation could 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.’ ” 489 So. 2d at 737 (quoting Martin v.

Estelle, 583 F.2d 1373, 1375 (5th Cir. 1979)). In Mason, this Court noted that

“[s]hould the trial court find, for whatever reason, that an evaluation of Mason’s

competency at the time of the original trial cannot be conducted in such a manner

as to assure Mason due process of law, the court must so rule and grant a new


                                        - 14 -
trial.” Id. at 737; see also Monte, 51 So. 3d at 1203. Thus, the remedy for a trial

court’s failure to follow the procedures discussed above depends on the

circumstances of each case.

                                   CONCLUSION

      For the foregoing reasons, we conclude that a trial court’s failure to observe

the procedures outlined in Florida Rules of Criminal Procedure 3.210-3.212—

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

or convicted while incompetent to stand trial—deprives a defendant of his due

process right to a fair trial. Although the trial court, when the parties agree, may

decide the issue of competency on the basis of written reports alone, it cannot

dispense with its duty to make an independent determination about a defendant’s

competency, and must enter a written order if the defendant is found competent to

proceed. Further, we conclude that the remedy for such a violation, a new trial or a

nunc pro tunc hearing to determine competency, depends on the circumstances of

each case. Accordingly, we quash in part the Fifth District’s decision in Dougherty

v. State, 96 So. 3d 984 (Fla. 5th DCA 2012), and approve the decision of the

Fourth District in Macaluso v. State, 12 So. 3d 914 (Fla. 4th DCA 2009), to the

extent it is consistent with this opinion.

      It is so ordered.

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

                                         - 15 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., dissenting.

      Although I agree that the Court has express and direct conflict jurisdiction, I

would nonetheless discharge this case. The majority correctly recognizes that

Dougherty’s incompetency claim is a claim of trial court error that is not

cognizable in a postconviction proceeding. The majority’s discussion of the

incompetency issue—which is the basis for our conflict jurisdiction—thus

constitutes an abstract legal discussion that has no application to the case on

review. The majority effectively acknowledges this when it observes that it does

“not address application of our holding to the specific circumstances of his case.”

Majority op. at 8. “Judicial declaration, unaccompanied by judicial application, is

of no authority.” John W. Salmond, The Theory of Judicial Precedents, 16 L.Q.

Rev. 376, 389 (1900). Because what the Court says here on the conflict issue has

no application in this case, the Court should refrain from saying it. The subject of

the conflict should be resolved in a future case when it is properly at issue.

      Accordingly, I dissent.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      Fifth District - Case No. 5D10-2755


                                        - 16 -
     (Brevard County)

Carlos Fernando Gonzalez and Paola M. Sanchez Torres of Diaz, Reus & Targ,
LLP, Miami, Florida,

     for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Wesley Harold
Heidt, Bureau Chief, and Rebecca Rock McGuigan, Assistant Attorney General,
Daytona Beach, Florida,

     for Respondent




                                    - 17 -
