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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



DEBORAH JEAN MOULTON,                        )
                                             )
              Appellant,                     )
                                             )
v.                                           )        Case No. 2D16-5416
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed November 15, 2017.

Appeal from the Circuit Court for Collier
County; Lauren L. Brodie, Judge.

Howard L. Dimmig, II, Public Defender, and
Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Linsey Sims-Bohnenstiehl,
Assistant Attorney General, Tampa, for
Appellee.


                       ORDER RELINQUISHING JURISDICTION


VILLANTI, Judge.

              Deborah Jean Moulton appeals her conviction and sentence for the

reduced charge of principal to manslaughter with a firearm, contending that her due

process rights were violated because the trial court did not make an independent
determination that she had been restored to competency before it accepted her plea to

the reduced charge. Because it is not clear that the trial court made an independent

finding of competency, we relinquish jurisdiction for sixty days, as we recently did in

Cramer v. State, 213 So. 3d 1028 (Fla. 2d DCA 2017), for the trial court to conduct a

new competency hearing.

              Moulton's competency was a recurring issue after she was arrested and

charged with one count of principal to second-degree murder with a firearm in May

2014. She was adjudicated incompetent to proceed on October 9, 2014, but the court

found her competency restored on January 7, 2015. Moulton was again adjudicated

incompetent to proceed on May 6, 2015. On that date, she was committed to the

Department of Children and Families (the Department) for treatment.

              On August 6, 2015, the administrator of the Department's treatment center

forwarded a new competency evaluation report to the court. This report, authored by a

staff psychologist and dated August 6, 2015, concluded that Moulton was then

competent to proceed. The administrator of the treatment center requested that the

court arrange for Moulton to be returned to Collier County for further proceedings.

              On August 27, 2015, the trial court held a hearing on Moulton's

competence. The hearing began with the following:

                     THE COURT: Do you waive her presence?
                     MR. VERDERAMO (defense counsel): Yes, Judge.
                     THE COURT: Okay.
                     MR. VERDERAMO: Judge, I've prepared an order.
              Mr. Stewart (counsel for the State) has (inaudible) and has
              no objection.
                     THE COURT: So both of you are agreeing that at this
              point she has been restored to competency based on the
              report filed, and we can proceed; is that correct?
                     MR. VERDERAMO: Yes, Judge, that's correct.



                                           -2-
                     THE COURT: Okay. Now what has to be done in
              order to get this case ready for trial?

Counsel and the court then had a discussion concerning the timing of trial and various

pretrial proceedings, which included scheduling an evaluation of Moulton in support of

an insanity defense. Then, just before the hearing concluded, the following ensued:

                     MR. STEWART: Oh, and Judge, you're finding her
              competent to proceed?
                     THE COURT: Yes, I entered the order—
                     MR. STEWART: Okay.
                     THE COURT: — based on the information. Does
              that conclude the docket?

The order actually signed by the trial court states:

                    THIS MATTER having come before this Court for a
              determination of competency, and the Court having been
              advised in the premises on both the facts and the law
              respecting the said Motion, it is therefore:
                    ORDERED AND ADJUDGED that the aforesaid
              Motion is GRANTED.
                    Both parties agree the aforementioned Defendant is
              competent to proceed to trial based upon the report dated
              August 6, 2015 by Armando Collado, Ph.D.

              After she was adjudged competent, Moulton entered into a negotiated

plea with the State to a reduced charge, and she was convicted and sentenced based

on her plea. She now contends that the court's acceptance of her plea violated due

process because the court did not make an independent determination that she had

been restored to competency.

              As an initial matter, this issue is properly before this court in this appeal

even though Moulton did not file a motion seeking to withdraw her plea. The supreme

court has held that a trial court's failure to comply with the requirements of Florida Rules

of Criminal Procedure 3.210-3.212 regarding competency procedures constitutes a




                                            -3-
violation of due process. See Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014).

Moreover, this court has held that a defendant who was adjudicated incompetent before

entering a plea may raise the issue of an improper adjudication of competency on direct

appeal even in the absence of a motion to withdraw the plea. See Shakes v. State, 185

So. 3d 679, 683 (Fla. 2d DCA 2016) (quoting Ross v. State, 155 So. 3d 1259, 1260

(Fla. 1st DCA 2015)). Hence, we address the issue on the merits.

             Turning to those merits, this court summarized the law in this area in its

discussion in Shakes.

                    "An individual who has been adjudicated incompetent
             is presumed to remain incompetent until adjudicated
             competent to proceed by a court." Dougherty v. State, 149
             So. 3d 672, 676 (Fla. 2014) (quoting Jackson v. State, 880
             So. 2d 1241, 1242 (Fla. 1st DCA 2004)). Florida Rules of
             Criminal Procedure 3.210 through 3.212 "set forth the
             required competency hearing procedures for determining
             whether a defendant is competent to proceed or has been
             restored to competency." Dougherty, 149 So. 3d at 677.
             Rule 3.210(a) provides that "[a] person accused of an
             offense or a violation of probation or community control who
             is mentally incompetent to proceed at any material stage of a
             criminal proceeding shall not be proceeded against while
             incompetent." "[W]hen the court receives notice that a
             defendant has regained competence, the court shall hold a
             hearing to determine if a defendant is competent to
             proceed." Roman v. State, 163 So. 3d 749, 751 (Fla. 2d
             DCA 2015) (citing Jackson, 880 So. 2d at 1242); Fla. R.
             Crim. P. 3.212(c). The trial court may take the testimony of
             court-appointed experts designated under rule 3.211, or
             where the parties and the trial court agree, the trial court
             "may decide the issue of competency on the basis of the
             written reports alone." Dougherty, 149 So. 3d at 677-78
             (quoting Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971));
             see Roman, 163 So. 3d at 751 ("If the parties agree, the trial
             court can make its competency determination based solely
             on experts' reports."). The trial court is tasked with making
             an independent legal determination regarding whether the
             defendant is competent, after considering the expert
             testimony or reports and other relevant factors. Dougherty,



                                          -4-
              149 So. 3d at 678 (holding that defendant may not stipulate
              to ultimate issue of competency because trial court retains
              responsibility to determine that issue). "[I]f a trial court finds
              that a defendant is competent to proceed, it must enter a
              written order so finding." Id.

Shakes, 185 So. 3d at 681 (alterations in original) (emphasis added). Hence, while the

trial court may rely on the written reports if the parties agree to that procedure, the court

may not rely solely on the parties' stipulation to competency, and the record must be

clear that the court has made an independent determination of the defendant's

competency. In other words, punctilious compliance with the competency restoration

procedures set forth in rules 3.210-3.212 is required.

              Here, nothing in the record unmistakably shows that the trial court made

an independent determination of Moulton's competency. The court did not consider the

testimony of any experts at the hearing, and nothing in the record shows that the court

reviewed and relied upon the report prepared by the psychologist from the treatment

center. Cf. Merriell v. State, 169 So. 3d 1287, 1288 (Fla. 1st DCA 2015) (finding the

trial court's procedure sufficient when the court stated on the record that it had reviewed

the competency evaluation report and specifically stated that it was finding the

defendant competent to proceed); Molina v. State, 946 So. 2d 1103, 1105 (Fla. 5th DCA

2006) (noting that the court may rely on only the written reports regarding the

defendant's competency if the parties agree to this procedure). The trial court's

statement that it had entered the order based on "the information," made at the end of

the hearing, is too vague to unequivocally show that the court reviewed and relied on

the psychologist's report rather than the parties' agreement. Moreover, the trial court

could not have made a determination of competency based on Moulton's actions at the




                                             -5-
hearing because counsel had waived her appearance and she was not present. See

Dougherty, 149 So. 3d at 678 (noting that a court could disagree with expert's reports

based on other evidence such as the defendant's courtroom behavior or attorney

representations). Instead, the only indication in the record is that the trial court relied

solely on the "agreement" of defense counsel and the State that Moulton was

competent—a procedure which is not legally sufficient. See Roman v. State, 163 So.

3d 749, 750-51 (Fla. 2d DCA 2015); see also Zern v. State, 191 So. 3d 962, 965 (Fla.

1st DCA 2016); S.B. v. State, 134 So. 3d 528 (Fla. 4th DCA 2014). Because we cannot

presume that proper findings were made sub silencio and because the trial court did not

comply with the requirements of rule 3.212 in adjudicating Moulton competent, it

appears that her conviction and sentence may have been entered in violation of due

process.

              The final question is the proper remedy. The supreme court in Dougherty

noted that "the remedy for a trial court's failure to follow the procedures discussed

above depends on the circumstances of each case." Dougherty, 149 So. 3d at 679. In

Shakes—which is procedurally and factually quite similar to this case—this court

reversed Shakes' conviction and sentence, remanded for the trial court to permit

Shakes to withdraw his plea, and ordered the trial court to hold a proper competency

hearing on remand. Shakes, 185 So. 3d at 683. More recently however, rather than

reversing the convictions, this court entered an order relinquishing jurisdiction for sixty

days and directing the trial court to conduct a new competency hearing. See Cramer,

213 So. 3d at 1029 (citing Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971)). In Fowler,

the supreme court explained:




                                             -6-
                        However, our finding [that the trial court's procedure
               was inadequate] does not require vacation of the judgment
               and sentence entered against defendant at this time. Knight
               v. State, 164 So. 2d 229 (Fla. [3d DCA] 1964); United States
               v. Walker, 301 F.2d 211 (6[th] Cir. 1962). Instead, the cause
               is temporarily remanded to the Circuit Court of Pinellas
               County with directions that the claim of insanity at the time of
               trial be determined in a full hearing as required by CrPR
               1.210(a). If upon such hearing the trial Court determines
               that the defendant was sane at the time of trial, the Court is
               ordered to forthwith transmit the entire record of the case,
               including a transcript of the sanity hearing, and a copy of the
               trial judge's order finding defendant sane, back to this
               Court. . . .

                      If, however, the trial Court shall determine the
               defendant was insane at the time of trial but is now sane, the
               Court is directed to vacate the adjudication of guilt and
               sentence, to give the defendant an opportunity to replead,
               and to set a new trial date; or if the holding of the trial Court
               shall be that the defendant was insane at the time of trial and
               is now or remains insane, the Court is directed to vacate the
               adjudication of guilt and sentence and commit the defendant
               to the proper institution.

Fowler, 255 So. 2d at 515-16. In Cramer, this court followed the Fowler court's

suggestion and relinquished jurisdiction and "direct[ed] the trial court to conduct a new

competency hearing following the procedure set forth by the supreme court in Fowler."

213 So. 3d at 1029.

               In this case, in light of the fact that Moulton entered a negotiated plea

agreement with the State to reduced charges, we follow Cramer and relinquish

jurisdiction to the trial court for sixty days from the date of this order and direct the trial

court to conduct a proper competency hearing in accordance with the guidance

provided in Fowler.




                                              -7-
            Jurisdiction relinquished with directions.


LaROSE, C.J., and SALARIO, J., Concur.




                                          -8-
