                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA
PRESTON PAMPHILE,
                                        NOT FINAL UNTIL TIME EXPIRES TO
      Petitioner,                       FILE MOTION FOR REHEARING AND
                                        DISPOSITION THEREOF IF FILED
v.
                                        CASE NO. 1D16-3387
STATE OF FLORIDA,

      Respondent.

_____________________________/

Opinion filed May 2, 2017.

Petition – Ineffective Assistance of Appellate Counsel – Original Jurisdiction.

Preston Pamphile, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney
General, Tallahassee, for Respondent.




KELSEY, J.

      Petitioner argues his appellate counsel ineffectively handled his direct appeal

in four ways. We find three of Petitioner’s arguments meritless, and deny his

petition as to those grounds; but we agree with the State’s proper concession of

error on the question of establishing Petitioner’s competency.
      Petitioner’s trial counsel requested a competency evaluation, and the trial

court appointed an expert to evaluate Petitioner and submit a report. The court set a

hearing on the issue. However, the expert’s report was not filed with the court, the

issue was not addressed at the scheduled hearing nor any other hearing, and the

trial court did not expressly adjudicate Petitioner’s competency. We must,

therefore, reverse Petitioner’s judgments and sentences, pending further

proceedings on remand.

      On remand, the court may make a nunc pro tunc competency determination

if there is evidence to support a finding that Petitioner was competent at the time of

trial. See Dougherty v. State, 149 So. 3d 672, 678-79 (Fla. 2014) (approving

remand for nunc pro tunc determination of competency if possible); Brooks v.

State, 180 So. 3d 1094, 1095 (Fla. 1st DCA 2015) (“[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.” (citing Reynolds v. State, 177 So. 3d

296, 298 (Fla. 1st DCA 2015))). If the trial court can make this determination, no

change to Petitioner’s judgments or sentences is required.

      If the court cannot make this retroactive determination, it must adjudicate

Petitioner’s present competency to stand trial; and if the court determines him

presently competent, then conduct a new trial. Brooks, 180 So. 3d at 1096; Cotton

v. State, 177 So. 3d 666, 668-69 (Fla. 1st DCA 2015). The remedy is “dependent

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on the circumstances of each case.” Id. at 669 (quoting Dougherty, 149 So. 3d at

678-79).

      Accordingly, we GRANT the petition as to the issue of Petitioner’s

competency only; and REMAND the case to the trial court for further proceedings.

Otherwise the petition is DENIED.


ROWE and JAY, JJ., CONCUR.




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