         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-2676
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HALEY BOWDEN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.

                       September 9, 2019


PER CURIAM.

     Appellant, Haley Bowden, appeals her convictions and
sentences for murder, burglary, and grand theft auto and argues
that the trial court erred in accepting her plea without holding a
competency hearing to determine that her competency had been
restored. For the reasons that follow, we agree with Appellant
and, therefore, reverse her convictions and sentences and remand
with instructions.

     Appellant, who was indicted in February 2013, was declared
incompetent to proceed in November 2014. In May 2015, the
facility in which Appellant had been a patient determined that she
was competent. In June 2015, the trial court appointed a third
expert for a competency evaluation. In October 2015, Appellant
pled nolo contendere to the charges. During the plea hearing, the
trial court stated, “[Appellant] at one time was deemed
incompetent to proceed on these charges. She has been found by
this court to be competent to proceed.” In November 2015, the
State filed a Motion to Declare the Defendant Competent,
representing in part, “After a search of records at the Clerk’s office,
there appears no record of an order declaring [Appellant]
competent, despite the Court declaring [her] competent and
counsel for the State and Defense both asserting that [she] has
been and was competent following the release from the [facility].”
That same month, the trial court entered an order granting the
State’s motion and declaring nunc pro tunc that Appellant “is and
has been competent to proceed since May 6, 2015.” In December
2015, a different attorney from the Public Defender’s Office filed a
Suggestion of Incompetency and Motion to Withdraw Plea on
Appellant’s behalf, asserting in part that the trial court did not
conduct a competency hearing prior to accepting Appellant’s plea.
After appointing conflict counsel for Appellant, the trial court
appointed two more experts to evaluate her competency, both of
whom found her competent. In August 2016, the trial court
entered an order wherein it found that Appellant was competent
to proceed to sentencing based upon the experts’ reports. This
belated appeal followed.

     A defendant may not be tried and convicted of a crime if he or
she is not competent to stand trial. Gore v. State, 24 So. 3d 1, 9
(Fla. 2009). In order to determine whether a defendant is
competent to proceed at trial or in postconviction proceedings, a
court must discern whether he or she has the sufficient present
ability to consult with counsel with a reasonable degree of rational
understanding and whether he or she has a rational as well as a
factual understanding of the pending proceedings. Id. Once a
court has reasonable grounds to question a defendant’s
competency, the court “has no choice but to conduct a hearing to
resolve the question.” Zern v. State, 191 So. 3d 962, 964 (Fla. 1st
DCA 2016). “At the competency hearing, the court must make its
own independent finding of competency or incompetence.” Id. A
court is not permitted to merely accept a stipulation of competence
even when all the experts have opined that the defendant is
competent. Id.; see also Walker v. State, 237 So. 3d 1162, 1165 (Fla.
1st DCA 2018) (“Once reasonable grounds existed, defense counsel

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should have filed the evaluation reports in the record for the
benefit of the trial court and to facilitate appellate review; and the
trial court should have conducted a hearing on the matter.”);
Sheheane v. State, 228 So. 3d 1178, 1180 (Fla. 1st DCA 2017)
(“Procedurally, once a court has reasonable grounds to question a
defendant’s mental health, it must hold a hearing.”). In the context
of someone who has previously been declared incompetent, the
supreme court has explained that “[g]enerally, 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.’” Dougherty v. State, 149 So. 3d 672,
677 (Fla. 2014) (quoting Jones v. State, 125 So. 3d 982, 983-84 (Fla.
4th DCA 2013)). However, if the parties and the trial court agree,
the court may decide the issue of competency on the basis of
written reports alone. Id. at 677-78. The de novo standard of
review applies to the legal question of due process in competency
proceedings. Sheheane, 228 So. 3d at 1179.

     In this case, although the trial court entered an order in
November 2015 declaring nunc pro tunc that Appellant had been
competent since May 2015, nothing in the record establishes that
a competency hearing was held at any point, either before or after
Appellant pled. In support of its argument that such a hearing
occurred, the State relies upon the proffered testimony of the
attorney who represented Appellant when she pled that was taken
during the hearing on the motion to withdraw plea. The attorney
testified that “the court said yes [it received the report] and based
on the reports [it] found [Appellant] competent.” However, such
testimony does not, in our opinion, show that a competency
hearing, to which Appellant was entitled, was conducted.
Although the trial court stated during the plea hearing that
Appellant “has been found by this Court to be competent to
proceed,” it is unclear from the record when the court made that
determination or what that determination was based upon. As
such, reversal of Appellant’s convictions and sentences for a
retroactive determination of competency following a hearing is
warranted. See Rosier v. State, 1D16-2327, 2019 WL 2710739, at
*4 (Fla. 1st DCA June 28, 2019) (en banc) (“Had there been such a
failure [to conduct a competency hearing] here, precedent from this

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Court would indeed support reversal.”); Lewis v. State, 190 So. 3d
208, 209 (Fla. 1st DCA 2016) (“[B]ecause the trial court did not
follow the required procedures for declaring Appellant competent
to proceed to enter his plea and to be sentenced, Appellant’s
judgment and sentence must be reversed.”).

      Upon remand, if the trial court finds that Appellant was
competent at the time she entered her plea, it must again enter a
nunc pro tunc written order memorializing that finding with no
change in the judgment. See Walker, 237 So. 3d at 1165 (“On
remand, the trial court must conduct a hearing to determine if
Appellant had been evaluated appropriately and deemed
competent before the trial. If such evidence exists, the trial court
may enter an order finding Appellant competent nunc pro tunc . .
. .”). If the trial court cannot make a retroactive determination, it
must allow Appellant to withdraw her plea and adjudicate her
present competency to proceed.

    REVERSED and REMANDED with instructions.

LEWIS, MAKAR, and JAY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Justin F. Karpf, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Steven Woods, Assistant
Attorney General, Tallahassee, for Appellee.




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