                FIRST DISTRICT COURT OF APPEAL
                       STATE OF FLORIDA
                 _____________________________

                         No. 1D16-2327
                 _____________________________

ROGER N. ROSIER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Wakulla County.
Dawn Caloca-Johnson, Judge.




                         June 28, 2019




     ON MOTION FOR REHEARING, REHEARING EN BANC, AND
                      CLARIFICATION


ROWE, J.

    Roger N. Rosier’s judgment and sentence were reversed by a
panel of this Court on grounds that the competency hearing
conducted by the trial court was legally inadequate. See Rosier v.
State, 43 Fla. L. Weekly D2042 (Fla. 1st DCA Sept. 5, 2018). The
State moved for rehearing, rehearing en banc, and clarification,
asserting that the Court sua sponte decided an issue not argued by
Rosier. We grant the motion, withdraw the panel opinion, and
substitute the following in its place.

                                  I.

     Rosier appeals his conviction and sentence for resisting an
officer with violence. He argues that the trial court erred by: (1)
imposing a discretionary fine and surcharge without orally
pronouncing them, and (2) failing to conduct a competency
hearing.

     We agree that the trial court erred when it imposed the
discretionary fine and surcharge under section 775.083, Florida
Statutes, without orally pronouncing them at sentencing. Thus,
the fine and surcharge must be stricken. We affirm Rosier’s
judgment and sentence in all other respects.

     Rosier made only one argument related to competency in his
initial brief—that the trial court erred as a matter of law by failing
to conduct a competency hearing. Rosier’s specific argument was:

    Mr. Rosier was committed to the Florida State Hospital
    after the trial court found that he was incompetent to
    proceed on October 7, 2013. After receiving a report
    recommending a finding of competency, the trial court
    scheduled the hearing required by Florida Rule of
    Criminal Procedure 3.212(c) for July 9, 2014; however,
    the required hearing never occurred. Subsequently, on
    August 14, 2014, a different circuit court judge entered
    an order finding that Mr. Rosier was competent. The
    controlling rules and case law cited above provide that a
    competency hearing is required in this context. The trial
    court erred as a matter of law by adjudging Mr. Rosier—
    who had previously been adjudged incompetent—
    competent without first holding a hearing.

     Weeks after the initial brief was filed, the State sought and
was granted leave to supplement the record with the transcript of
the competency hearing conducted on August 14, 2014. After being
                                  2
served with a transcript contradicting his claim that no
competency hearing occurred, Rosier did not seek to amend the
initial brief to clarify or supplement his arguments on appeal.

     The State then filed an answer brief, arguing that the
transcript of the competency hearing, the expert’s report, and the
trial court’s order refuted Rosier’s argument that the trial court
failed to conduct a competency hearing. The State contended that
the record showed,

    the trial court made an independent determination that
    Rosier was competent and fully complied with the
    requirements expressed in Dougherty v. State, 149 So. 3d
    672 (Fla. 2014), and Merriell v. State, 169 So. 3d 1287
    (Fla. 1st DCA 2015)[,] by holding a hearing, making an
    independent determination that Appellant was
    competent to proceed, and entering a written order.

Rosier did not respond to the State’s arguments. Rather than file
a reply brief, he filed a “Notice that Appellant Will Not File a Reply
Brief.”

     After briefing, this Court delivered an opinion reversing
Rosier’s judgment and sentence. The panel majority cast Rosier’s
argument on appeal as one “challeng[ing] the adequacy of the
hearing at which it was determined that his competency had been
restored.” Rosier, 43 Fla. L. Weekly at D2042. Holding that the
competency hearing was inadequate, the majority reversed and
remanded for the trial court to make a nunc pro tunc evaluation of
Rosier’s competency.

                                 II.

     On rehearing, the State points out that the only argument
presented in Rosier’s initial brief was that the trial court entered
an order finding Rosier competent to proceed without conducting
a competency hearing. The State argues that Rosier did not
challenge the adequacy of the hearing. Thus, the issue was
waived, and the panel majority erred by sua sponte raising and
deciding the issue. In his response to the rehearing motion, Rosier
acknowledged that he failed to raise the adequacy of the hearing
                                  3
in the initial brief but argued that the issue was properly before
the Court because the State raised it in the answer brief, and
Rosier’s initial-brief argument—that the trial court failed to hold
a competency hearing—necessarily included an argument that the
hearing was inadequate. We disagree and hold that Rosier waived
any argument on the adequacy of the competency hearing when he
failed to raise the issue in the initial brief.

     An appellate court is “not at liberty to address issues that
were not raised by the parties.” Anheuser-Busch Co., Inc. v.
Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013). Nor may an
appellate court “depart from its dispassionate role and become an
advocate by second guessing counsel and advancing for him
theories and defenses which counsel either intentionally or
unintentionally has chosen not to mention.” Polyglycoat Corp. v.
Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) (on
motion for rehearing); see also D.H. v. Adept Cmty. Servs., Inc., 43
Fla. L. Weekly S533, S539 (Fla. Nov. 1, 2018) (Canady, C.J.,
dissenting) (“[I]t is not the role of the appellate court to act as
standby counsel for the parties.”). Instead, an appellate court
must confine its decision to the issues raised in the briefs. See
Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1126
(Fla. 2014) (“Basic principles of due process”—to say nothing of
professionalism and a long appellate tradition—“suggest that
courts should not consider issues raised for the first time at oral
argument” and “ought not consider arguments outside the scope of
the briefing process.”) (quoting Powell v. State, 120 So. 3d 577, 591
(Fla. 1st DCA 2013))); Redditt v. State, 84 So. 2d 317, 320 (1955)
(“The function of an assignment of error is to point [to] the specific
error claimed to have been committed by the court below, in order
that the reviewing court and opposing counsel may see on what
point the appellant seeks reversal and to limit argument and
review to such point.”); T.M.H. v. D.M.T., 79 So. 3d 787, 827 (Fla.
5th DCA 2011) (Lawson, J., dissenting) (“Judicial restraint serves
as the essential self-imposed ‘check’ against the judicial branch’s
abuse of power. . . .”). For an appellant to raise an issue properly
on appeal, he must raise it in the initial brief. Otherwise, issues




                                  4
not raised in the initial brief are considered waived or abandoned. 1
See Hall v. State, 823 So. 2d 757, 763 (Fla. 2002) (finding
procedurally barred argument made in appellant’s reply brief that
was not raised in the initial brief), abrogated on other grounds by
Norvil v. State, 191 So. 3d 406 (Fla. 2016); City of Miami v.
Steckloff, 111 So. 2d 446, 447 (Fla. 1959) (“An assigned error will
be deemed to have been abandoned when it is completely omitted
from the briefs.”); J.A.B. Enter. v. Gibbons, 596 So. 2d 1247, 1250
(Fla. 4th DCA 1992) (“[A]n issue not raised in an initial brief is
deemed abandoned and may not be raised for the first time in a
reply brief.”); Philip J. Padovano, Waiver, 2 Fla. Prac., App.
Practice § 8:10 (2017 ed.) (“Failure to pursue the argument on
appeal or review is a waiver of the point.”).

     These fundamental principles of appellate review and judicial
restraint apply even when the defendant has been convicted of a
capital crime and sentenced to death. See Hoskins v. State, 75 So.
3d 250, 257 (Fla. 2011) (declining to address a claim of ineffective
assistance of counsel because appellant raised the claim for the
first time in the reply brief); Simmons v. State, 934 So. 2d 1100,
1117 n.14 (Fla. 2006) (declining to reach on direct appeal “any
arguments not expressly included in Simmons’ brief to this
Court”); Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla. 1997) (finding
waived on direct appeal a claim of improper admission of the
defendant’s statements made during a taped interview because the

    1 The   dissenting judges argue that the scope of appellate
review is not so limited, citing language in D.H., and other
decisions that indicate that, even if not raised on appeal, a
reviewing court may review the record for “obvious fundamental
error” or jurisdictional defects. But see Kirkman v. State, 233 So.
3d 456, 465 (Fla. 2018) (declining to consider argument where
appellant failed to preserve the argument in the trial court and
presented     “no    argument     for    fundamental     error  on
appeal”). Because there is no jurisdictional defect or fundamental
error in this case, we need not address the purely academic
question raised by the dissents, i.e., whether an appellate court
must act as standby appellate counsel and scour the record in each
case for fundamental error.


                                  5
defendant failed to brief fully and argue the issue); Johnson v.
State, 660 So. 2d 637, 645 (Fla. 1995) (reiterating on direct appeal
that “[t]he law is well settled that failure to raise an available issue
constitutes an admission that no error occurred”); Duest v. Dugger,
555 So. 2d 849, 851-52 (Fla. 1990) (finding waived in a
postconviction appeal any claims not fully argued in the
appellant’s initial brief).

     Applying these principles here, we find Rosier waived any
argument that the competency hearing was inadequate. Williams
v. State, 932 So. 2d 1233, 1237 (Fla. 1st DCA 2006) (defining
waiver as the “voluntary and intentional relinquishment of a
known right or conduct which implies the voluntary and
intentional relinquishment of a known right”). In his initial brief,
Rosier argued only that the trial court failed to hold a competency
hearing. Now on rehearing, he argues, for the first time, that the
hearing was inadequate. Because Rosier did not challenge the
adequacy of the competency hearing in his initial brief, he may not
raise it now on rehearing. Coolen, 696 So. 2d at 742 n.2; Anheuser-
Busch, 125 So. 3d at 312.

     Rosier offers two reasons why his failure to brief the adequacy
of the hearing does not bar this Court from reviewing the issue.
First, he asserts that the issue was properly before the Court
because the State implicitly raised the issue in the answer brief by
arguing that the trial court made an independent determination of
Rosier’s competency. Second, Rosier argues that “[a] finding of
competency following an inadequate hearing is essentially the
same error as a finding of competency following no hearing at all.”

     We reject both arguments. First, the State’s arguments in the
answer brief assigned no new error for this Court to review. Even
after Rosier received the supplemental record refuting his only
argument on competency, Rosier did not seek leave to file an
amended brief. See In re J.W., 210 So. 3d 147, 152 (Fla. 2d DCA
2016) (holding that appellant waived issue not argued in her initial
brief after she was put on notice of the issue in the answer brief
and “did not move for leave to file an amended brief to address the
point”); Bilotti v. State, 27 So. 3d 798, 800 (Fla. 2d DCA 2010)
(holding that appellant waived issue because he did not raise it in


                                   6
the initial brief, seek leave to file a supplemental brief, or reply to
the State’s answer brief).

     Second, Rosier’s initial argument challenging the trial court’s
failure to hold a competency hearing was insufficient to preserve
his argument on rehearing challenging the adequacy of the
hearing. I.R.C. v. State, 968 So. 2d 583, 588 (Fla. 2d DCA 2007)
(recognizing that an appellate court may “ordinarily reverse only
on the basis of the specific arguments presented by the appellant”).
Even when confronted with the transcript of the hearing, Rosier
did not file a reply brief to respond to the arguments in the answer
brief and to clarify the argument made in his initial brief. We
decline the invitation to expand Rosier’s lack-of-hearing argument
to incorporate his newly articulated inadequate-hearing
argument. See Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.
3d 269, 278 (Fla. 1st DCA 2012) (explaining that Florida Rule of
Appellate Procedure 9.330(a) expressly prohibits consideration of
issues raised for the first time in a motion for rehearing).

                                 III.

     We thus confine our review to the argument Rosier raised in
the initial brief—whether the trial court failed to conduct a
competency hearing. Had there been such a failure here,
precedent from this Court would indeed support reversal. See
Pearce v. State, 250 So. 3d 791, 792-93 (Fla. 1st DCA 2018);
Robinson v. State, 250 So. 3d 777, 778-79 (Fla. 1st DCA 2018);
Francis v. State, 248 So. 3d 263, 264-65 (Fla. 1st DCA 2018). But
reversal is not required here because the record clearly shows that
the trial court did conduct a hearing on Rosier’s competency.

      Rosier was committed to the Florida State Hospital after the
trial court determined that he was incompetent to proceed on
October 7, 2013. On June 27, 2014, the trial court received a copy
of the confidential evaluation report from the experts at Florida
State Hospital. The report found Rosier competent to proceed. The
report also included discharge instructions suggesting that jail
officials continue Rosier’s medication regime while Rosier awaited
trial. The case progress docket then reflects that a review hearing
was scheduled for August 13, 2014, with Judge Caloca-Johnson
presiding.
                                  7
     At the review hearing, defense counsel alerted the court that
Rosier was returning from Florida State Hospital and that a
competency hearing should be scheduled. Defense counsel asked
that the hearing occur before the case was set for trial. When the
prosecutor suggested resolving the issue that day, defense counsel
stated that Rosier was not present and asked for the competency
hearing to be set for the next day, August 14, 2014. The following
discussion occurred:

    THE COURT: Yeah. So we’ve moved to[o] much around,
    in the last twenty-four hours.

    THE CLERK: How long is it going to take?

    THE COURT: How long is it going to take, two seconds?

    MS. JOHNSON: Judge, it won’t - - it won’t take more
    than - - more than thirty seconds.

    THE COURT: Okay.

    MS. JOHNSON: We’re stipulating that he’s competent.

The record reflects that the court reconvened the next day for a
competency hearing.

     At that hearing, defense counsel and Rosier stipulated to the
expert report’s findings that Rosier was competent to proceed. The
trial court then conducted a colloquy of Rosier, during which the
court learned that Rosier believed that he was doing “a lot better,”
that he was not taking any psychotropic medications, and that he
believed he was okay. The trial court’s written order, entered on
the same day as the hearing, provided:

    THIS CAUSE having come before the Court on the report
    of Leslie Dellenbarger, Psy.D. Senior Psychologist,
    Florida State Hospital of June 19, 2014, that the
    Defendant is competent to proceed, and the Court being
    fully advised in the premises, it is hereby

         ORDERED AND ADJUDGED:
                                 8
     1. The Defendant is currently competent to proceed to
    trial.

     These facts refute Rosier’s argument that the trial court failed
to hold a hearing before entering the order finding him competent
to proceed. See Merriell, 169 So. 3d at 1288 (affirming a finding of
competency made during a status hearing when the court
specifically stated that it had read the competency evaluations and
that it found the appellant competent to proceed). Because the
record shows that the trial court conducted a hearing to determine
competence, Rosier’s sole argument on appeal fails. Apart from
our reversal of his sentence to address the imposition of the fine
and surcharge, Rosier’s judgment and sentence is AFFIRMED in
part, REVERSED in part, and REMANDED for further proceedings.

B.L. THOMAS, C.J., and LEWIS, ROBERTS, WETHERELL, RAY,
OSTERHAUS, KELSEY, WINOKUR, JAY, and M.K. THOMAS, JJ.,
concur.

WOLF, J., concurs in result with opinion.

WINOKUR, J., concurs in an opinion joined by B.L. THOMAS, C.J.

M.K. THOMAS, J., concurs in an opinion joined by B.L. THOMAS,
C.J., and KELSEY and JAY, JJ.

MAKAR, J., dissents in an opinion joined by BILBREY, J.

BILBREY, J., dissents in an opinion joined by MAKAR, J.
                  _____________________________

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

WOLF, J., concurring in result.

   I concur in affirming the trial court’s determination regarding
competency. Any alleged error in this case was not sufficiently

                                  9
egregious to warrant this court reversing on an issue not raised
within appellant’s brief.

     If an error in this case, however, had been discovered by this
court during its normal review process that affected the
fundamental fairness of the criminal proceeding, we would be
required to order supplemental briefing and address the error. 2
Not addressing an error that goes to the very fairness of a criminal
proceeding is simply not an option. I fully agree with the thoughts
expressed by Judge Cohen in his well-reasoned concurrence in
Berben v. State, 44 Fla. L. Weekly D962, 963 (Fla. 5th DCA Apr.
12, 2019), where he stated:

    While the dissent correctly asserts that we have no duty
    to undertake a fundamental error analysis, we do,
    however, have a duty to ensure that justice is applied
    fairly and evenly. E.g., Smith v. State, 521 So. 2d 106, 108
    (Fla. 1988) (explaining that fundamental error should
    apply “where the interests of justice present a compelling
    demand for its application” (citing Ray v. State, 403 So.
    2d 956 (Fla. 1981)). It is also a well-established practice
    of this Court to remedy fundamental errors on the face of
    the record. E.g., Honaker v. State, 199 So. 3d 1068, 1070
    (Fla. 5th DCA 2016); Johnson v. State, 574 So. 2d 222,
    224 (Fla. 5th DCA 1991); Goss v. State, 398 So. 2d 998,
    999 (Fla. 5th DCA 1981). I agree that a finding of
    reversible error that was neither preserved at the trial
    level nor argued on appeal should be a rare circumstance;
    this is that rare case. We cannot simply ignore the
    fundamental sentencing error under the guise of “judicial
    restraint.”

(Footnote omitted).


    2 Where a defendant files an Anders brief, we are required to
look for fundamental error by thoroughly examining the record
and addressing issues not raised. See Anders v. California, 386
U.S. 738 (1967). In this case there is no such requirement, but we
should not ignore egregious fundamental errors that are found in
our normal review process.
                                 10
    The same can be said of non-sentencing errors that go to the
very fairness of a criminal proceeding.

     The majority acknowledges that because it finds no error, it is
unnecessary to address whether an appellate court can decide an
issue that affects the fundamental fairness of a criminal
proceeding if it is unbriefed. I write specifically to point out that
the holding of this case does not address that issue and to voice the
view that a bright-line rule that prohibits us from ever addressing
discovered fundamental unfairness is inconsistent with our system
of justice.

WINOKUR, J., concurring.

     The majority opinion acknowledges the rule that “an appellate
court may consider an issue that has been waived or abandoned
when the issue involves ‘obvious fundamental errors’ or the court’s
jurisdiction.” Maj. op. at 5 n.1 (citing D.H. v. Adept Cmty. Servs.,
Inc., 43 Fla. L. Weekly S533, S535 (Fla. Nov. 1, 2018)). However,
the majority opinion avoids application of this rule by asserting
that “the trial court [here] committed no fundamental error.” Maj.
op. at 5 n.1.

     I do not dispute this conclusion. As such, we should not
address the unraised issue, and the issue raised does not support
reversal. This should end the inquiry, but other opinions in this
case specifically address whether we have a duty to correct
fundamental error that the appellant did not raise. On this matter,
I believe a few additional points are worth mentioning.

              1. Chief Justice Canady’s D.H. dissent

     First, I agree with Chief Justice Canady’s position on unraised
error, expressed in dissent in D.H.:

        Our precedent requires that an argument for
    reversal be specifically preserved in the trial court and
    then be specifically raised and briefed to the appellate
    court in order for that appellate court or a higher
    appellate court to consider it. Otherwise, the argument is


                                 11
    waived. General or vague references to an issue will not
    suffice. . . .

         This requirement of specific argument and briefing
    is one of the most important concepts of the appellate
    process. Indeed, it is not the role of the appellate court to
    act as standby counsel for the parties.[3] Moreover, it is
    only logical to require an argument to specifically be
    raised. Otherwise, the appellee “must not only respond to
    the specific reasons for reversal advanced by the
    [appellant] but also anticipate and respond to other
    reasons for reversal that may be advanced by the
    reviewing court.” In the end, absent some exception to the
    waiver doctrine, an appellant who abandons an argument
    cannot benefit from that argument in the future.

D.H., 43 Fla. L. Weekly at S539 (Canady, C.J., dissenting)
(citations and footnote omitted). Exceptions to this elementary rule
of appellate law should be rarely made.

                  2. Nature of fundamental error

    Second, I emphasize a basic feature of fundamental error: the
whole point of identifying an error as “fundamental” is to permit
an appellant to argue that the error supports reversal even if the

    3 The importance of a court’s duty to remain neutral and to
refrain from making arguments for one side of a proceeding was
discussed at length in the dissenting opinion of Lee v. State, 264
So. 3d 225, 231 (Fla. 1st DCA 2018) (Makar, J., dissenting). In Lee,
the appellant argued that the trial judge improperly departed from
his neutral position by taking actions that assisted the
prosecution. No doubt the trial judge in Lee believed that the
prosecution’s perceived failures were causing impropriety in the
proceedings, and that his disputed actions were necessary to
promote justice. Yet the dissenting opinion forcefully contended
that the trial judge’s actions improperly assisted one side and
constituted an abandonment of neutrality. I believe that assisting
the appellant here by reversing the conviction on an issue he did
not assert himself would have the same effect.

                                 12
issue was never raised or properly preserved below. See, e.g., Insko
v. State, 969 So. 2d 992, 1001 (Fla. 2007) (noting that “to obtain
appellate review of a claimed error . . ., a party must have
preserved the error by timely objection,” “unless fundamental
error occurred”); F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003)
(noting that only fundamental error “may be raised for the first
time on appeal”); Judge v. State, 596 So. 2d 73, 79 n.3 (Fla. 2d DCA
1991) (holding, “[i]n its narrowest functional definition,
‘fundamental error’ describes an error that can be remedied on
direct appeal, even though the appellant made no
contemporaneous objection in the trial court . . .”). See also
§ 924.051(3), Fla. Stat. (“An appeal may not be taken from a
judgment or order of a trial court unless a prejudicial error is
alleged and is properly preserved or, if not properly preserved,
would constitute fundamental error.”). 4

     But if we permit the reversal of a judgment based on unraised
fundamental error, not only do we permit an appellant to raise an
unpreserved error if it is fundamental, but we hold that the
appellant does not even have to raise the issue, because the
appellate court has an independent duty to reverse, even if the
issue is unraised. I believe this rule radically and unnecessarily
alters the very definition of fundamental error. “Fundamental
error” would no longer mean “error so serious that a litigant can
raise it on appeal even if unpreserved;” instead, it would mean
“error so serious that an appellant does not even have to raise it
on appeal and the court bears an obligation to discover and correct
the error sua sponte.” I see no compelling reason to transform the
longstanding, well-accepted definition of fundamental error.

    4  To be clear, in no way do I suggest that “the lack of
preservation precludes appellate review under a fundamental
error exception,” as Judge Makar contends. (Makar, J., dissenting
at 37). Nor do I ignore section 924.051(3), which I cite above. If it
needs to be said, of course we must reverse a conviction if a
criminal defendant properly argues on appeal that fundamental
error occurred, even if the issue was not preserved below. The issue
I address here is an appellate court’s obligation to address sua
sponte a fundamental error that the appellant never raised. No
Florida statute requires an appellate court to do so.

                                 13
           3. “Obvious” or “egregious” fundamental error

      To repeat, I agree with Chief Justice Canady that an
argument for reversal must “be specifically raised and briefed to
the appellate court in order for that appellate court . . . to consider
it,” and that “[t]his requirement of specific argument and briefing
is one of the most important concepts of the appellate process.”
This foundational rule of appellate law does not contain a
“fundamental error” exception. 5 But the D.H. majority opinion
allows a court to reverse a judgment on an unraised issue if it
constitutes “obvious fundamental error.” In concurrence here,
Judge Wolf advocates for a similar rule, finding that we should
reverse a judgment based on “egregious fundamental errors” even
if the appellant does not raise them. (Wolf, J., concurring at 10).

      Does adding “obvious” or “egregious” to the phrase
“fundamental error” narrow the range of errors that can support
reversal if the error is unraised? If so, one obvious benefit would
be to require a higher degree than “mere” fundamental error: while
an appellant cannot raise an unpreserved issue unless it
constitutes fundamental error, a court cannot raise the issue sua
sponte unless it is “obvious” or “egregious” fundamental error. But
an obvious drawback of such a rule is definitional. If an error is
defined as fundamental when it goes “to the foundation of the case
or . . . to the merits of the cause of action[,]” Sanford v. Rubin, 237
So. 2d 134, 137 (Fla. 1970), it is “egregious” by its nature. In other
words, a truly fundamental error is an egregious error. As such, I
am not certain it is helpful to decide that fundamental error can
be addressed sua sponte if it is “egregious.”


    5  It should go without saying that this rule of law applies only
to arguments to reverse a trial court’s ruling. It is just as much a
fundamental rule of appellate law that the court may affirm (in
fact must affirm) a ruling on any argument supported by the
record, even if not raised by the appellee. See Dade Cty. Sch. Bd.
v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999); State v.
Pitts, 936 So. 2d 1111, 1133 (Fla. 2d DCA 2006) (explaining that
appellate courts should affirm “even if the specific basis for
affirmance has not been articulated by the appellee”).

                                  14
     But what does it mean that a fundamental error is “obvious?”
The limits of this principle are illustrated by Berben v. State, 268
So. 3d 235 (Fla. 5th DCA 2019), cited with approval by Judge Wolf.
In that case, the panel discerned an error in the sentencing hearing
that it described as fundamental. The court reversed the sentence,
based on this perceived error that the court discovered itself. And
yet, the decision produced a dissenting opinion, in which the
dissenting judge found no error at all. Id. at 239-40 (Grosshans, J.,
dissenting). This leads to the question, how can an error be an
obvious fundamental error, if one-third of the panel considering
the question found that no error even occurred? 6

     I believe the same reasoning applies here. If honest and
reasonable judges disagree on whether a matter even constitutes
error at all, then the alleged error cannot be obvious enough to
invoke a rule that a court may correct such errors even if unraised.
In the context raised here, I believe a showing that the trial court
tried a manifestly incompetent defendant might invoke such a
rule. In contrast, a showing that the trial court did not properly
comply with Rule 3.212 regarding proper findings of competency,
which could possibly, but not necessarily, lead to an
unconstitutional result, does not. 7

    6  To demonstrate this point further, I cannot help but to
observe that I agree with Judge Grosshans that the sentencing
judge’s comment in Berben was not inappropriate. While there
could be fair debate on this issue, it seems doubtful that the error
was so fundamental to the fairness of the proceeding that it
demanded the appellate court to sua sponte unearth this alleged
error, depart from its neutral role, and reverse the conviction on a
ground unraised by the appellant.

    7   Such a rule would be consistent with the definition of
fundamental error (called “plain error”) used by the Georgia
courts. Such error permits reversal of a conviction if the error was
“obvious,” if it “likely affected the outcome of the proceedings,” and
if it “seriously affected the fairness, integrity or public reputation
of judicial proceedings.” Smith v. State, 737 S.E.2d 677, 681 (Ga.
2013). While this arguably ought to be the standard for
fundamental error in this state, our state has permitted appellants
to raise fundamental error in some contexts as long the error
                                    15
                 4. “Unrenunciable judicial duty”

    The dissenting opinions note that this court has ruled that it
has an “unrenunciable judicial duty” to correct fundamental error,
even if unraised by the appellant. I believe this phrase should be
placed in context.

     The first opinion to use the phrase “unrenunciable judicial
duty” was Bain v. State, 730 So. 2d 296, 302 (Fla. 2d DCA 1999)
(“As such, the correction of fundamental error is not merely a
judicial power; it is an unrenunciable judicial duty.”). But Bain had
nothing to do with errors the appellant did not raise on appeal.
Bain had argued on appeal that “the minimum mandatory aspect
of the robbery sentence exceeds that permitted by the habitual
violent felony offender statute.” Id. at 297. The Bain court had to
consider whether it could address this sentencing error even
though it was unpreserved, concluding that it could because
correction of a fundamental error was an “unrenunciable judicial
duty.” Id. at 302. The phrase was just a grandiloquent way of
saying that an appellant asserting fundamental error is entitled to
reversal, even if the error is unpreserved. This is hardly a novel
rule of law.

    The phrase was unused for nine and one-half years until this
Court picked it up in Bishop v. State, 21 So. 3d 830 (Fla. 1st DCA

somehow affects a constitutional right. Dougherty v. State, 149 So.
3d 672 (Fla. 2014), provides an example. Because the procedures
in Rules 3.210 and 3.212 “protect a defendant’s right not to be tried
or convicted while incompetent to stand trial,” id. at 679, failure to
comply with those procedures constitutes fundamental error. See
Zern v. State, 191 So. 3d 962, 965 (Fla. 1st DCA 2016) (applying
Dougherty). In other words, cases like Dougherty do not require
that it is “likely” that the error constituted a deprivation of
constitutional rights, only that procedures designed to protect
those rights were not followed. I submit that an “obvious”
fundamental error should be consistent with the Georgia definition
of plain error. The record ought to demonstrate that it is “likely”
that a constitutional right (here, the right not to stand trial while
incompetent) was violated, not that it was merely possible this
right was violated because proper procedures were not followed.
                                 16
2008). Only this time, the phrase was used not simply as
shorthand for “the court can reverse even if the issue asserted is
unpreserved, if the issue constitutes fundamental error.” Instead,
Bishop ruled explicitly that the court should reverse on an issue
the appellant never asserted: “Although Appellant did not raise
this issue as a basis for reversal, we must carry out our
‘unrenunciable judicial duty’ to correct fundamental error and
review this issue.” Id. at 832 (citing Bain, 730 So. 2d at 302). In
fact, Bain did not address unraised issues and ruled nothing of the
sort.

     In spite of the fact that Bishop applied the “unrenunciable
judicial duty” language from Bain to an entirely new context, a few
cases have cited the language from Bishop as support for the
proposition that an appellate court must correct fundamental error
sua sponte, even if the appellant does not raise it. See Hendricks v.
State, 34 So. 3d 819, 828 (Fla. 1st DCA 2010); Adams v. State, 122
So. 3d 976, 979 (Fla. 2d DCA 2013); Phelps v. State, 236 So. 3d
1162, 1164 (Fla. 2d DCA 2018); Berben, 268 So. 3d at 238. 8

     Until Bishop came along and created a rule of law by
misapplying Bain, no appellate court had ever ruled that it had an
“unrenunciable judicial duty” to sua sponte identify error in the
record and reverse a judgment because the error was fundamental.
That particular rule of law has existed for only eleven years and
stemmed from a misapplication of an earlier case. As such, I
caution against using this phrase, and cases citing it, as evidence
of a longstanding rule of appellate law requiring reversal in this
circumstance.

     I do not dispute that some decisions have ruled that a court
can reverse on unraised error, even ones that do not use the phrase
“unrenunciable judicial duty.” But to the extent that district court
decisions extend the right of the court to reverse on unraised error
beyond that which is permitted by the Supreme Court (which, I

    8 It should be noted that neither Hendricks nor Adams
involved reversal of a conviction. So to the extent that those cases
rule that the appellate court has a duty to correct unraised
fundamental error, such ruling would be dicta.

                                 17
contend, circumscribes this power by limiting it to “obvious”
fundamental error), then I disagree with those decisions. 9 In
particular, this includes any case claiming broad authority for an
appellate court to sua sponte address claims unraised by the
appellant that it finds “fundamental,” on the basis that the court
has an unrenunciable duty to correct such error. 10

                      5. Anders v. California

     Some opinions in this case have suggested that the procedure
employed to effectuate Anders v. California, 386 U.S. 738 (1967),
demonstrates that it is acceptable for the court to review the record
sua sponte and reverse a conviction if it detects error. I believe
this position misconstrues Anders.


    9  I do not believe that my opinion conflicts with Florida
Supreme Court decisions, as Judge Bilbrey’s dissent contends.
Neither Bell v. State, 289 So. 2d 388 (Fla. 1973) nor Redditt v.
State, 84 So. 2d 317 (Fla. 1955), involves the court reversing a
conviction, on grounds unraised or otherwise, so I submit that an
opinion questioning the validity of that practice is not implicated
by these decisions. Any suggestion in those cases that an appellate
court could reverse a conviction based upon unraised fundamental
error is plainly dicta. As for D.H., I concede that I find the
dissenting opinion persuasive, but my primary point about it is
that we should give meaning to the term “obvious” when it
discusses “‘obvious’ fundamental error.” I do not believe that
making this point “conflicts” with D.H.

    10 District court cases are not uniform in their approach to the
court’s right or duty to address unraised fundamental error. Some
cases have in fact ruled that an appellate court may not consider
an unraised fundamental error. See, e.g., Grimsley v. State, 939 So.
2d 123, 125 (Fla. 2d DCA 2006) (finding that it was “precluded
from reviewing” a possible fundamental error “because it was not
raised on appeal”). Cf. Williams v. State, 845 So. 2d 987, 989 (Fla.
1st DCA 2003) (ruling that the court “cannot consider” possible
fundamental errors because the appellant “failed to raise these
issues in the initial brief”). This belies any suggestion that such
review is clearly permitted (or required) by the case law.
                                  18
     Anders suggests a procedure to ensure the right to counsel
where appointed counsel believes the record presents no non-
frivolous issues:

          [I]f counsel finds his case to be wholly frivolous, after
    a conscientious examination of it, he should so advise the
    court and request permission to withdraw. That request
    must, however, be accompanied by a brief referring to
    anything in the record that might arguably support the
    appeal. A copy of counsel’s brief should be furnished the
    indigent and time allowed him to raise any points that he
    chooses; the court—not counsel—then proceeds, after a
    full examination of all the proceedings, to decide whether
    the case is wholly frivolous. If it so finds it may grant
    counsel’s request to withdraw and dismiss the appeal
    insofar as federal requirements are concerned, or proceed
    to a decision on the merits, if state law so requires. On
    the other hand, if it finds any of the legal points arguable
    on their merits (and therefore not frivolous) it must, prior
    to decision, afford the indigent the assistance of counsel
    to argue the appeal.

Id. at 744. The point of Anders is not to require the appellate court
to provide an extra layer of review to criminal judgments. It is to
ensure that a defendant receives the right to counsel guaranteed
by the United States Constitution when appointed counsel finds
that an appeal would be wholly frivolous. When counsel so
concludes, the Anders procedure requires the appellate court to
review the record to determine that it agrees with counsel’s
assessment that an appeal would be wholly frivolous. Appellants
like Rosier, in contrast, have counsel who filed a brief arguing for
reversal. He has already received his constitutional right to
counsel, unlike a defendant whose appointed counsel finds no
argument for reversal. Accordingly, there is no reason for the court
to conduct its own review. 11 As such, I do not believe that Anders

    11 It should be noted that the United States Supreme Court
does not require the Anders procedure. See Smith v. Robbins, 528
U.S. 259, 276 (2000). In fact, several states have rejected the
Anders requirements in part because they “place[] the appellate
court in the inappropriate role of defense counsel, forcing the court
                                 19
should be used to encourage appellate courts to depart from
judicial impartiality in cases where an argument for reversal has
been made.

    6. Problems with sua sponte review for fundamental error

     To be clear, I do not dispute that some cases contain language
allowing an appellate court to reverse based on fundamental error
not raised by the appellant. I do, however, dispute the broad
assertion of authority to do so expressed by some opinions here,
which I read as “if the court finds fundamental error, it should
reverse.” I find that the scope of this right raises as many questions
as it answers:

    • Is the appellate court permitted to reverse on unraised
    fundamental error, or is it required to reverse? If it is
    merely permitted, how should the court exercise its
    discretion to do so?




to devise and recommend viable legal arguments for subsequent
appellate counsel.” State v. Cigic, 639 A.2d 251, 252 (N.H. 1994);
see also In re Attorney’s Fees of Mohr, 32 P.3d 647, 653 (Haw. 2001)
(“It has been and continues to be the policy of this court not to
permit Anders briefs. We think the better policy is to require
counsel to remain an advocate for the client. . . . This policy reposes
advocacy with counsel and judging with the court.”); Ramos v.
State, 944 P.2d 856, 858 (Nev. 1997) (“The adversary system has
served the administration of justice long and well. . . . The Anders
compromise with our traditional adversary process has failed to
justify itself.” (quoting Gale v. United States, 429 A.2d 177, 183
(D.C. 1981) (Ferren, J., dissenting))); State v. Wilson, 83 N.E.3d
942, 947 (Ohio Ct. App. 2017) (“The Anders procedure has also
been criticized for creating a role reversal between counsel and the
court and removing the adversarial nature of the judicial
system.”). Anders, a controversial outlier in the regular adversary
judicial system, does not suggest that we should sua sponte reverse
here.


                                  20
    • If the appellate court is required to reverse (i.e., has an
    “unrenunciable duty” to reverse) unraised fundamental
    error, does it have a duty to review the entire record for
    such error, regardless of what the appellant raised on
    appeal? Doesn’t the phrase “unrenunciable duty” suggest
    that the appellate court must review the entire record?

    • For instance, if the appellant raises only a sentencing
    issue, is the appellate court required to review the trial
    transcript for fundamental error?

    • Is the appellate court required to supplement the record
    with parts of the proceedings that were not included in
    the record on appeal, in order to search for fundamental
    error?

    • Or is the appellate court required only to correct
    unraised fundamental error if it happens to stumble upon
    it?

    • Doesn’t the latter procedure (i.e., the court does not
    need to look for unraised fundamental error, but must
    address it if it happens to notice it) conflict with a court’s
    “unrenunciable duty” to correct fundamental error? And
    doesn’t it invite arbitrary decisions, where relief is
    premised upon the court happening upon an error?

     This last concern is demonstrated by Berben. The only
sentencing argument raised by the appellant there was that the
sentence imposed was disproportionate to the crime. Berben, 268
So. 3d at 236. An appellate court can address this question without
resort to the sentencing transcript. Suppose one panel considering
a case with this matter addressed the proportionality issue
without detecting the claimed error in the sentencing transcript,
but another panel considering another case with this matter—like
the one in Berben—reviewed the sentencing transcript and
concluded that the trial judge’s comments were erroneous. Has
justice been “applied fairly and evenly”? Id. at 239 (Cohen, J.,
concurring). Did the first panel do anything wrong by not noticing
the unraised error in a transcript unrelated to the issue on appeal?
I submit that this concern shows that an appellate panel that takes
                                 21
it upon itself to review the record for unraised error risks arbitrary
justice far more than the panel that confines itself to the issues
raised on appeal.

    With these observations, I concur with the majority opinion.

M.K. THOMAS, J., concurring.

     “If judicial review means anything, it is that judicial restraint
does not allow everything.” Robinson v. Crown Cork & Seal Co.,
Inc., 335 S.W. 3d 126, 163 (Tex. 2010) (Willett, J., concurring). The
case before us presents no error in Mr. Rosier’s competency
determination—much less error of an obvious and fundamental
nature. Thus, argument regarding an appellate court’s obligation
to correct unraised fundamental error is purely academic.

     The trial court previously adjudged Mr. Rosier incompetent
based on a psychiatric evaluation. He was committed to Florida
State Hospital for treatment. Eight months later, the Department
of Children and Families (DCF) informed the trial court that Mr.
Rosier no longer met the criteria for continued commitment
pursuant to an updated forensic mental health competency
assessment and evaluation. In response, the trial court entered an
Order to Transport and Notice of Hearing. The order attached the
mental health evaluation, ordered Mr. Rosier transported to a
detention facility and a competency hearing to be scheduled. On
August 13, 2014, at a hearing on the matter, defense counsel
informed the trial court that Mr. Rosier had been discharged from
Florida State Hospital but that no competency hearing had yet
been conducted. Defense counsel advised she was not disputing
competency “but I ask that we set [a hearing] first, prior to setting
it for trial.” The state announced a willingness to stipulate to
competency and allow the trial court to enter an immediate order.
However, defense counsel clarified that although amenable to such
a stipulation, she wanted Mr. Rosier present for the competency
proceeding. Accordingly, the competency hearing was reset for the
next day.

    The parties reconvened on August 14, 2014, with Mr. Rosier
present. The competency hearing transcript shows that defense
counsel advised the court of the following: Mr. Rosier had been
                                 22
discharged from Florida State Hospital; the report from the
updated mental health evaluation declared Mr. Rosier competent
to proceed to trial; she had conferred with Mr. Rosier personally
and reviewed the report with him; she provided an update to the
report’s recommendation that Mr. Rosier continue his medication
regimen; she advised that in speaking to Mr. Rosier and his case
manager that Mr. Rosier was no longer in need of or taking
psychotropic medications; and she took steps to confirm that Mr.
Rosier was no longer on psychotropic medications by contacting his
detention facility. The trial court then proceeded to question Mr.
Rosier on his mental status and medications. With no contrary
argument from the state, the trial court orally advised Mr. Rosier
that she found him competent to proceed and would set a docket
sounding and trial date. Subsequently, the trial court entered an
Order Finding Defendant Competent to Proceed. The order
advised that the matter came before the court on the report of the
Florida State Hospital psychologist and Mr. Rosier was found
competent to proceed.

     The dissent initially argues that Mr. Rosier was entitled to “a”
hearing to determine his competency. However, as the record
contains a transcript of the competency hearing, the dissent
detours to challenge the adequacy of the proceeding. In addition to
the dissent’s consideration of argument not presented on appeal, I
am troubled by the dissent’s citation of Dougherty and Zern as
establishing a “thoroughness test” for competency hearings.
Dougherty v. State, 149 So. 3d 672 (Fla. 2014); Zern v. State, 191
So. 3d 962 (Fla. 1st DCA 2016). I readily profess blindness to this
application as I fail to see such a bright-line test announced in
either case. Independent of the judicial obligation versus restraint
debate, I expressly reject that a “thoroughness test” has been
pronounced in Dougherty or Zern. In Dougherty, no hearing
occurred because the parties stipulated to competency, the trial
court did not engage in independent analysis and no competency
order was entered. Dougherty, 149 So. 3d at 674-75. In Zern,
although the trial court conducted a competency hearing, “the trial
court relied on the stipulation of defense counsel and the
preponderance of the experts’ ultimate opinions to make its
competency determination, without having read all the
evaluations.” 191 So. 3d at 965. In Dougherty, our supreme court
advised that pursuant to Florida Rules of Criminal Procedure
                                 23
3.210-3.212, a trial court may, if the parties agree, “decide the
issue of competency on the basis of the 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.” 149
So. 3d at 679. Here, the trial court considered the mental health
reports, information provided by defense counsel on her contacts
with Mr. Rosier and his mental health caregivers and case
manager and the update on his medication regimen. In addition,
the trial judge personally questioned Mr. Rosier before entering an
order of competency.

     After the updated mental health evaluation, the record
presents no hint of incompetency that would require a closer
scrutiny than afforded Mr. Rosier. Thus, our analysis should be
tailored accordingly. Placing artificial parameters on competency
hearings without deference to the factual particularities opposes
the axiom of judicial discretion—here, to discern the necessary
depth of a hearing to reach the required independent
determination of competency. Indeed, under these facts Mr. Rosier
was afforded every procedural due process protection, and the trial
court’s independent determination of his competency fully
complied with requirements of the Rule and Dougherty.

       I acknowledge that in D.H. v. Adept Community Services, Inc.,
No. SC17-829, 2018 WL 5660595, *6 (Fla. Nov. 1, 2018), our
supreme court advised, “[e]ven though an issue has been
abandoned, an appellate court may nonetheless address that issue
if it involves the court’s ‘jurisdiction or other issues raising obvious
fundamental errors.’” (quoting All. for Conservation of Nat. Res. in
Pinellas Cty. v. Furen, 122 So. 2d 51, 65 (Fla. 2d DCA 1960)). This
judicial power to review unpreserved fundamental error is
permissive and should be deliberately rationed. However,
appellate consideration of unraised fundamental error undermines
the very confidence and predictability of the rules of appellate
procedure. As Justice Canady described in his dissent, “[t]his
requirement of specific argument and briefing is one of the most
important concepts of the appellate process.” Id. at *13.

    Contrary to the dissent’s argument, the majority has not
chosen to turn a blind eye to its judicial obligations or to any error,
                                  24
much less an obvious fundamental one, nor has it rationalized a
judicial ratification of an invalid stipulation. With both eyes open
and clear vision, we simply see no error here. Notably, when
properly raised by the appellant in briefing, this Court has
frequently reversed trial court orders on competency, when the
trial court failed to make an independent determination of
competency as required by the Rule and Dougherty. See Johnson
v. State, 264 So. 3d 259 (Fla. 1st DCA 2019); Boren v. State, 262
So. 3d 243 (Fla. 1st DCA 2018); Oats v. State, 253 So. 3d 1265 (Fla.
1st DCA 2018); B.E. v. State, 253 So. 3d 772 (Fla. 1st DCA 2018);
Pearce v. State, 250 So. 3d 791 (Fla. 1st DCA 2018); Robinson v.
State, 250 So. 3d 777 (Fla. 1st DCA 2018); Francis v. State, 248 So.
3d 263 (Fla. 1st DCA 2018); Berry v. State, 237 So. 3d 1165 (Fla.
1st DCA 2018); Pamphile v. State, 216 So. 3d 765 (Fla. 1st DCA
2017); Trueblood v. State, 193 So. 3d 1060 (Fla. 1st DCA 2016);
Zern, 191 So. 3d 962. Here, the lack of error dictates otherwise.

      Under a banner of judicial obligation, the dissent promotes an
“Anders-esque” review of all appellate cases. See Anders v.
California, 386 U.S. 738 (1967) (holding that an appellate court
assumes the responsibility of conducting a full and independent
review of the case to discover any arguable issues apparent on the
face of the record). However, this unfettered appellate review may
result in egregious sentencing consequences and further due
process concerns. As Judge Bilbrey profoundly recognizes in his
dissent, an appellate court’s unsolicited takeover of a defendant’s
case (especially when the defendant is represented by counsel)
may not necessarily be a “win.” Respectfully, the dissent’s
promotion of a strike zone of judicial obligation to correct unraised
error creates a dangerous and unpredictable playing field. As this
case presents no error with respect to the competency proceeding,
I join the majority.

MAKAR, J., dissenting.

     “Justice is blind,” the adage symbolizing an impartial
judiciary, doesn’t mean that appellate judges must put on blinders
when fundamental errors stare at them from an appellate record,
particularly errors affecting a defendant’s constitutional right not
to be tried while incompetent, which in this case involves a
perfunctory judicial ratification of an unlawful stipulation of
                                 25
counsel that the competency of a previously incompetent
defendant had been restored. Zern v. State, 191 So. 3d 962, 964–65
(Fla. 1st DCA 2016) (fundamental due process error where trial
court accepts a stipulation of competence); Belizaire v. State, 188
So. 3d 933, 935 (Fla. 1st DCA 2016) (same).

      Appellate Court’s Duty to Correct Fundamental Error

      Florida’s appellate courts have long recognized judicial
authority—and a “unrenunciable” duty—to correct fundamental
errors, meaning those of such gravity that ignoring and not
correcting them would diminish public respect for the judicial
process, even if those errors were not preserved at trial, not raised
on appeal in the briefing process, or raised by the appellate court
on its own. See, e.g., Bell v. State, 289 So. 2d 388, 391 (Fla. 1973)
(“It is the long standing rule of this Court that when assignments
of error are not argued in the briefs they will be deemed abandoned
unless jurisdictional or fundamental error appears in the record.”)
(emphasis added); Hendricks v. State, 34 So. 3d 819, 828 (Fla. 1st
DCA 2010) (“Despite Appellant’s failure to argue fundamental
error, we consider whether the purported error is of a fundamental
nature because it is an appellate court’s ‘unrenunciable judicial
duty’ to correct fundamental error even if it is not raised.”) (citation
omitted); I.A. v. H.H., 710 So. 2d 162, 165 (Fla. 2d DCA 1998)
(“Although positions that are not presented to the trial court or
argued on appeal generally are waived, it is our duty to notice and
correct jurisdictional defects or fundamental errors even when they
have not been identified by the parties.”) (emphasis added); Bain v.
State, 730 So. 2d 296, 302 (Fla. 2d DCA 1999) (“the correction of
fundamental error is not merely a judicial power; it is an
unrenunciable judicial duty.”); J.V. v. State, 221 So. 3d 689, 691
(Fla. 4th DCA 2017) (“Although appellant does not raise this issue
on appeal, we conclude that [pleading defect] amounts to
fundamental error which can be addressed sua sponte.”); Honaker
v. State, 199 So. 3d 1068, 1070 (Fla. 5th DCA 2016) (appellate court
“may sua sponte address fundamental error apparent on the face
of the record”); see also § 924.051(3), Fla. Stat. (2019) (“A judgment
or sentence may be reversed on appeal only when an appellate
court determines after a review of the complete record that
prejudicial error occurred and was properly preserved in the trial
court or, if not properly preserved, would constitute fundamental
                                  26
error.”) (emphasis added). By its nature, “fundamental error is not
subject to harmless error review.” Reed v. State, 837 So. 2d 366,
369-70 (Fla. 2002).

     As the Fifth District recently held, “an appellate court may
sua sponte address such an error if it is determined to be
fundamental and is apparent on the face of the record.” Berben v.
State, 268 So. 3d 235, 238 (Fla. 5th DCA 2019). Florida’s
fundamental error doctrine parallels the federal plain error
doctrine, whose foundational parameters were based on United
States v. Atkinson, 297 U.S. 157, 160 (1936), which held that “[i]n
exceptional circumstances, especially in criminal cases, appellate
courts, in the public interest, may, of their own motion, notice
errors to which no exception has been taken, if the errors are
obvious, or if they otherwise seriously affect the fairness, integrity,
or public reputation of judicial proceedings.” (Emphasis added).
See generally Fed. R. Crim. P. 52(b) (2019) (“A plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.”); see also § 90.104(3), Fla.
Stat. (2019) (noting that a court may take “notice of fundamental
errors affecting substantial rights, even though such errors were
not brought to the attention of the trial judge.”). Again, the error
in question need not have been preserved at trial or raised in the
briefing process; it can be addressed by an appellate court on its
own, much as in Anders cases where an appellate court “assumes
the responsibility of conducting a full and independent review of
the record to discover any arguable issues apparent on the face of
the record.” Michael Ufferman, § 20:7. Anders review, 22 Fla.
Prac., Criminal Practice & Procedure § 20:7 (2019 ed.) (citing
Anders v. State, 386 U.S. 738 (1967), and State v. Causey, 503 So.
2d 321, 323 (Fla. 1987) (reading Anders to “allow both the
appellant and the state to submit briefs on issues that the court has
found in its independent review to be arguable on the merits.”)
(emphasis added).

     Our supreme court has made clear that an appellate court has
an obligation to correct fundamental errors in the “interests of
justice.” Ray v. State, 403 So. 2d 956, 960 (Fla. 1981); see also
Smith v. State, 521 So. 2d 106, 108 (Fla. 1988); Bain, 730 So. 2d at
302 (purpose of fundamental error doctrine “extends beyond the
interests of a particular aggrieved party; it protects the interests
                                  27
of justice itself. It embodies the courts’ recognition that some errors
are of such a magnitude that failure to correct them would
undermine the integrity of our system of justice.”) The doctrine is
not a judicial license to correct any and all errors; instead, it is
applied in those infrequent instances where errors go to the
“foundation of the case or goes to the merits of the cause of action.”
Ray, 403 So. 2d at 960. The list of fundamental errors includes the
total failure of evidence to establish the commission of a crime, the
facial unconstitutionality of a criminal statute used to charge a
defendant, double jeopardy violations, convictions for non-existent
offenses, as well as denials of due process including the failure to
provide a hearing required by the criminal procedure rules. See
generally Philip J. Padovano, § 27:3. Fundamental Error, 2 Fla.
Prac., Appellate Practice § 27:3 (2018 ed.) (citing cases); see, e.g.,
F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 2003) (holding that
evidence that “is totally insufficient as a matter of law to establish
the commission of a crime need not be preserved” and “meets the
requirements of fundamental error-i.e., an error that reaches to
the foundation of the case and is equal to a denial of due process.”).

                  Due Process & Incompetency:
         Reliance on a Stipulation is Fundamental Error

     The list of fundamental errors includes due process violations
arising from inadequacies in determining a defendant’s
competency to stand trial. The due process right of a defendant to
not be subject to trial when incompetent is a long-standing and
weighty one. Drope v. Missouri, 420 U.S. 162, 171 (1975) (“It has
long been accepted that a person whose mental condition is such
that he lacks the capacity to understand the nature and object of
the proceedings against him, to consult with counsel, and to assist
in preparing his defense may not be subjected to a trial.”); see also
Medina v. California, 505 U.S. 437, 446 (1992) (“The rule that a
criminal defendant who is incompetent should not be required to
stand trial has deep roots in our common-law heritage.”); Cotton v.
State, 177 So. 3d 666, 667–68 (Fla. 1st DCA 2015) (“It is a due
process violation to proceed against an incompetent criminal
defendant.”); see generally Hopkins v. State, 632 So. 2d 1372, 1374
(Fla. 1994) (unpreserved error is fundamental if it is “basic to the
judicial decision under review and equivalent to a denial of due
process.”).
                                  28
     As this Court has held, fundamental error occurs when an
incompetent criminal defendant is denied an adequate process and
a meaningful and independent judicial hearing by which his
current competency to stand trial is reviewed and adjudged in a
conscientious way. Zern, 191 So. 3d at 964 (“A criminal defendant
has a procedural due process right to the observance of procedures
adequate to protect his or her right not to be tried or convicted
while incompetent to stand trial.”) (emphasis added). Indeed, an
“independent competency finding is a due-process right that
cannot be waived” such that a trial court “fundamentally err[s] in
failing to make such a finding.” Id. at 965 (emphasis added). Stated
differently, where the record demonstrates that a competency
decision is not based on the trial court’s independent
determination of a defendant’s current competency, fundamental
error is shown.

     In this regard, it is a non-waivable fundamental error where
a stipulation of a defendant’s competency is relied upon in the
competency process. The reason is that reliance on a stipulation
“improperly absolves the trial court from making an independent
determination regarding a defendant’s competency to stand trial.”
Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014); see also Zern,
191 So. 3d at 964 (trial court “is not permitted to merely accept a
stipulation of competence.”). As stated in Ross v. State, 155 So. 3d
1259 (Fla. 1st DCA 2015):

    In order to proceed against a defendant who has been
    adjudicated incompetent, the trial court first must hold a
    hearing to determine whether the defendant’s
    competency has been restored, review evidence from
    experts during the hearing, make an independent
    determination that the defendant’s competency has been
    restored, and enter a written order to that effect. These
    requirements cannot be waived by a stipulation.

Id. at 1259-60 (citing Dougherty) (emphasis added); see also
Belizaire, 188 So. 3d at 935 (same).

     Counsel may agree to have the independent judicial
determination of competency be based on expert reports without
live testimony, but those reports are only advisory. Zern, 191 So.
                                29
3d at 964. Stipulations as to competency are not reports, however,
and cannot be relied upon at all else the independent judicial
determination is compromised, resulting in fundamental error. Id.
Reliance on a stipulation, even in part, violates due process even
where other evidence is considered. Id. (“acceptance of a
stipulation is improper even when all the experts have opined that
the defendant is competent, as other evidence may indicate
incompetence.”). For example, in Zern this Court noted that the
“trial court relied on the stipulation of defense counsel and the
preponderance of the experts’ ultimate opinions to make its
competency determination, without having read all the
evaluations.” Id. at 965 (emphasis added). By doing so, the trial
court failed to make an “independent finding” and thereby
“fundamentally erred” in doing so. Id.

                Stipulation to Rosier’s Competency
                   & The “Two Second” Hearing

     Turning to this case, Roger N. Rosier was adjudicated
incompetent to stand trial in October 2013 for resisting arrest, the
trial court ruling that Rosier was “suffering from a serious, chronic
major mental illness” and presenting himself as “psychotic and
significantly impaired in his thinking, which is disorganized and
delusional.” Rosier’s “disordered thinking would almost certainly
interfere with his being able to” assist in his defense and “testify
relevantly” at trial; it was “highly unlikely” that he would be able
to engage in appropriate courtroom behavior; and he had an
“inadequate appreciation of the charges, the possible penalties” he
faced, and the “adversarial nature of the legal process.” As such,
he was deemed incompetent to proceed with any legal proceedings
and was involuntarily placed for psychiatric hospitalization due to
the “real and present threat of substantial harm” to his well-being.

    Nine months later, a report from Florida State Hospital
deemed Rosier competent to stand trial and a hearing on the
matter was set for July 9, 2014 before the original trial judge who
had found Rosier incompetent. That hearing, however, did not take
place. Instead, on August 13, 2014, the prosecutor and appointed
defense counsel met to docket the case for trial with a new judge
who had never observed Rosier. After the trial date was set, it


                                 30
occurred to Rosier’s counsel that a restored competency hearing
had not yet been held.

    [Defense counsel]: We have not had a competency hearing
    for Mr. Rosier. I ask that we set that so that – we’re not
    disputing competency—but I ask that we set that first,
    prior to setting it for trial.

    [Prosecutor]: If you stipulate, we can do it right now. Your
    Honor, if there’s a stipulation as to his competency, that
    can be done per stipulation, then the Court can rule on it.

    [Defense counsel]: We’re stipulating that he’s competent.
    He’s not present, but I would prefer him to be present. If
    we can reset it for court tomorrow, so that we can address
    it.

The trial judge, who expressed frustration with counsel due to last
minute rescheduling complications, 12 was concerned about how
much time the stipulated competency matter would take, saying
“How long is it going to take, two seconds?” Appointed counsel
responded, saying “it won’t take more than – more than thirty
seconds” because “[w]e’re stipulating that he’s competent.”

     Based on the stipulation of the prosecutor and appointed
counsel, the “hearing” the following day was—as predicted—
perfunctory, amounting to less than two pages of transcript. The
trial court asked only whether Rosier felt well (“I’m good. . . . A lot
better.”), and whether he was taking any medications or
psychotropic drugs (“No ma’am.”). With that, Rosier—diagnosed
with severe mental illness and deemed incompetent to stand trial
and a harm to himself ten months earlier—was pronounced




    12 The trial court said, “I mean, this is the problem. In the last
twenty-four hours, the e-mails blow up, the phone calls blow up,
everything gets moved around; it’s insane. . . . So, do y’all start
looking at your cases forty-eight hours before court? Because it is
like everything goes crazy.”

                                  31
competent to proceed, a standard order was issued, 13 and he was
tried and convicted.

            Fundamental Error on the Face of the Record

     As in Zern, Belizaire, and other stipulation of competency
cases, the requirements of an adequate competency process were
not met in Rosier’s case because there is no indication that
sufficient judicial review was done to form an “independent
determination that the defendant’s competency has been
restored.” Ross, 155 So. 3d at 1259 (citing Dougherty). This is so
because the prosecutor and appointed counsel stipulated to
Rosier’s competency. Both believed—and had agreed the day
before the “hearing” without Rosier present—that a competency
determination could be done by stipulation. Appointed counsel,
who preferred a hearing the next day when Rosier would be
present, said the hearing would take only “thirty seconds” and the
trial judge thought even less (“two seconds”), which confirms that
the seconds-long “hearing” was simply to ratify the stipulation.
This rote ratification of a stipulation is much like Belizaire, where
defense counsel told the trial judge the defendant was competent
to proceed to trial (based on the expert reports of the state and the
defense) to which the trial court responded, “All right.” 188 So. 3d
at 935. This Court concluded that it “must interpret the court’s
statement of ‘All right’ as simply accepting [defendant’s] counsel’s
stipulation that because both experts found [defendant]
competent, they could proceed with the trial.” Id. Reversal and a
remand was the result.

    13   The trial court’s order stated:

    THIS CAUSE having come before the Court on the report
    of Leslie Dellenbarger, Psy.D. Senior Psychologist,
    Florida State Hospital of June 19, 2014, that the
    Defendant is competent to proceed, and the Court being
    fully advised in the premises, it is hereby

          ORDERED AND ADJUDGED:

    1. The Defendant is currently competent to proceed to
    trial.
                             32
     Of note, Rosier was never asked about the state’s expert
report or whether he agreed to it. Nor was he asked whether he
was aware of or agreed with the lawyers’ stipulation of his restored
competency. And the trial judge neither discussed nor stated she’d
reviewed the report – why would she if there was a stipulation? Cf.
Hunter v. State, 174 So. 3d 1011, 1014-15 (Fla. 1st DCA 2015)
(where the trial court, “on the record, did consider the two reports
from the forensic mental health specialists concluding that
Hunter’s competency was restored.”). Her observation and
questioning of Rosier were cursory at best. Her written order,
which simply says the matter had “come before” the court on the
state’s report, doesn’t show that the judge actually reviewed or
relied on it. Zern, 191 So. 3d at 965 (failure to make independent
finding where no showing that trial judge “read all the
evaluations.”); cf. Merriell v. State, 169 So. 3d 1287, 1288 (Fla. 1st
DCA 2015) (where “the court stated that it had reviewed the
evaluation” and “relied on it as permitted by the rules” to find the
defendant competent to proceed). Indeed, the order’s boilerplate
language (that the court was “fully advised in the premises”)
supports the appearance that the court was ratifying the
stipulation; after all, the trial judge had been “fully advised” the
prior day of the stipulation and envisioned a “two second” hearing.
The language saying the report had “come before” the trial court
doesn’t mean it was actually reviewed or relied on; why take the
time to do so where a stipulation is in place? Rosier’s attorneys,
both at trial and on appeal, contributed to the problem, as did the
prosecutor and trial judge: none of them balked at judicial
ratification of a stipulation of competency at a pro forma “hearing”
that took negligible time.

     On the face of the record, the “hearing” does not reflect the
type of independent judicial determination the caselaw requires to
establish that Rosier’s competency had been restored. In a sense,
it was not a hearing at all but merely a mechanical and superficial
rubber-stamp of the lawyers’ stipulation of competency for which
relief is justified.




                                 33
 The Panel Majority Properly Adjudicated the Competency Issue,
     Which Presented a Non-Waivable Fundamental Error

     The appellate panel, like the en banc court itself, has a duty
to review the record for fundamental errors even those not directly
raised by the defendant. This is a criminal appeal, one in which an
appellate panel should not ignore fundamental error that appears
in the record. Causey, 503 So. 2d at 322–23 (“While courts should
not assume the role of appellate counsel, reversible error should
not be ignored simply because an indigent appellant or a public
defender failed to point it out.”) (emphasis added). Had this case
been presented to the Court via an Anders brief or by Rosier pro
se, the same obligation would attach: The Court should review the
record for fundamental error and not abandon the inquiry simply
because appointed counsel didn’t do its job well enough.

     In this case, the parties’ briefs directed the panel to a potential
problem with the competency determination. The panel majority
did not “sua sponte” raise the competency issue, as has been
suggested. Rather, appointed counsel’s brief asserted the lack of
any hearing; the State’s brief countered that a hearing was held
(supplementing the record with transcript excerpts) and that it
was adequate, 14 thereby focusing the panel’s attention on the
issue. It is plausible that Rosier’s appellate counsel simply
overlooked or was unaware of the three to four pages of
supplemental transcript comprising counsels’ stipulation to
Rosier’s competency and the perfunctory “hearing” the next day.
But a reply brief (or a request to submit an amended initial brief)
ought to have been forthcoming once those transcript pages
became known.

    Even if the competency issue hadn’t been raised in the briefing
process, however, it was permissible to consider it sua sponte
because an adequate competency determination is a non-waivable
due process right, the denial of which is fundamental error that a
panel cannot disregard. Zern, 191 So. 3d at 965 (“[A]n independent
competency finding is a due-process right that cannot be waived

    14 Perhaps because it recognized the fundamental nature of
the issue, the State spent all but one page of its answer brief
arguing that the competency determination was adequate.
                               34
once a reason for a competency hearing has surfaced . . . .”). As
such, it is irrelevant whether Rosier’s appellate counsel adequately
raised the issue. Id.; Cotton, 177 So. 3d at 667. Perhaps the panel
should have issued a Causey order and ordered supplemental
briefing, but the State had already briefed the issue, and the panel
majority was well-versed in the applicable precedent, such that no
prejudice was shown. In re Order of First Dist. Court of Appeal
Regarding Brief Filed in Forrester v. State, 556 So. 2d 1114, 1117
(Fla. 1990); Cotton, 177 So. 3d at 667 (ordering supplemental
briefing in Anders appeal where the panel’s “independent review
of the record” identified potential error in competency process).
The error was obvious, and the record supported reversal.

     Because the trial judge did not conduct an independent
competency determination, fundamental error exists and Zern,
Belizaire, and like cases control. Simply “going through the
motions” and ratifying counsels’ stipulation as to competency in a
perfunctory and pre-ordained process doesn’t cut it under the
caselaw. See Dougherty, 149 So. 3d at 678 (“[N]othing 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.”). Due process goes
beyond checking boxes. That a hearing (of sorts) was held doesn’t
mean it was adequate. For example, this Court’s review of the
record in Zern showed the “trial court relied on the stipulation of
defense counsel and the preponderance of the experts’ ultimate
opinions to make its competency determination, without having
read all the evaluations.” 191 So. 3d at 965 (emphasis added). In
that case, the trial court wasn’t “adequate” enough to meet due
process standards, in part, because of the reliance on the
stipulation and the failure to read “all the evaluations.” Id. In
contrast, this case presents no evidence to support a finding that
the trial judge read anything, which wouldn’t be surprising given
counsels’ stipulation without Rosier present that his competency
had been restored and that the “hearing” to ratify the counsels’
stipulation would take “thirty seconds” or just “two seconds” as the
trial judge prognosticated.




                                35
                            Conclusion

     The en banc court has chosen to exercise its discretion by
turning a blind eye to an obvious fundamental error that is easily
corrected by a remand and a proper competency hearing, instead
leaving it to the post-conviction process to rectify the due process
violation and potential ineffectiveness of counsel. I would correct
the error now, guided in part by the following statement of
principles:

    Although fundamental error is extraordinarily difficult to
    define, the doctrine functions to preserve the public’s
    confidence in the judicial system. Relief is granted for a
    fundamental error not because the party has preserved a
    right to relief from a harmful error, but because the
    public’s confidence in our system of justice would be
    seriously weakened if the courts failed to give relief as a
    matter of grace for certain, very limited and serious
    mistakes.

Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 584 (Fla.
2d DCA 1996) (emphasis added), disapproved of on other grounds
by Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000).
For my part, I fail to see how rationalizing and upholding a
perfunctory judicial ratification of an invalid stipulation of
competency, which this Court has previously held is fundamental
error (Zern, Belizaire), does anything other than diminish this
confidence.

                               ***
                             Postscript

     A few points are worthy of mention. First, the point of
departure in this case is the majority’s unwillingness to look
beyond the initial brief, even though statutory law and precedent
authorize doing so. It is one thing to engage in fundamental error
review and conclude that no error, fundamental or otherwise,
exists; it is quite another to say the Court simply will not engage
in fundamental error review at all when an issue was unpreserved
or not raised on appeal. The former is defensible, the latter is not.
Second, none of the dissenters in this case make any claim that an
                                 36
“appellate court must act as standby counsel” or that a court must
“scour the record” in every case for fundamental record, as the
majority charges. These are classic straw men statements,
designed to distract from the merits of the case. Third, the
majority’s first sentence is misleading because it says that Rosier’s
conviction was reversed, but it fails to mention the case was
remanded for a hearing at which Rosier’s competence would be
reviewed; if the trial judge determined nunc pro tunc that Rosier
was competent, his conviction would stand; if not, a new trial
would be required, which is standard relief in this type of case.

     Next, Judge Winokur would depart from precedent and
preclude an appellate court from correcting fundamental errors on
its own, citing Justice Canady’s dissent in D.H. v. Adept Cmty.
Servs., Inc., No. SC17-829, 2018 WL 5660595 (Fla. Nov. 1, 2018).
Fairly read, however, Justice Canady’s opinion did not advocate
renunciation of fundamental error analysis; instead, he advocated
that “[i]n the end, absent some exception to the waiver doctrine
[such as the fundamental error doctrine], an appellant who
abandons an argument cannot benefit from that argument in the
future.” Id. at *13. Plus, D.H. is a civil case, which has a higher
fundamental error standard than criminal cases in which due
process and liberty interests are most prominent. See Norman v.
Gloria Farms, Inc., 668 So. 2d 1016, 1027 n.1 (Fla. 4th DCA 1996)
(“In other words, the threshold for finding fundamental error must
actually be lower in criminal cases to insure that an accused
person’s rights under the fourth, fifth and sixth amendments are
not lost” in the criminal process.) (Farmer, J., dissenting); see
generally Valeria Hendricks, Pop Quiz: Why Is Fundamental Error
Like Pornography?, 76 Fla. B.J. 77, 78 (2002) (analyzing
fundamental error doctrine’s application at various stages of civil
cases, noting that courts are “likely to see fundamental error in
constitutional issues involving due process.”).

     His claim that the lack of preservation precludes appellate
review under a fundamental error exception is directly contrary to
established precedent. See, e.g., Bain, 730 So. 2d at 302 (“appellate
review of fundamental error is, by its nature, an exception to the
requirement of preservation. Indeed, it is only in this context that
the concept has meaning. Put another way: no rule of preservation
can impliedly abrogate the fundamental error doctrine because the
                                 37
doctrine is an exception to every such rule.”). He would apparently
ignore the Legislature’s clearly expressed will as set forth in
section 924.051(3), which allows appellate courts to review and
reverse judgments and sentences in cases where unpreserved
errors “constitute fundamental error.” What circumstances
constitute fundamental error are open to debate, but the
fundamental error doctrine’s application to issues not raised on
appeal is not.

     Finally, Florida’s appellate judges—who for decades through
the present have conscientiously applied the fundamental error
doctrine in hundreds of cases—are not roving squadrons of
unrestrained judicial activists looking to assist criminal
defendants by overturning convictions. Far from it. They are
simply doing their duty as defined by statute, precedent and the
circumstances of each case as they deem proper. Fundamental
error (and Anders review) are nothing new in Florida’s judicial
system. If the Legislature and our supreme court (or the people by
constitutional amendment) want to alter or abolish the
fundamental error doctrine, that is up to them, not us. Until that
happens, our duty is to correct fundamental error on the face of the
record as the Legislature and our supreme court have authorized.

BILBREY, J., dissenting.

     I join Judge Makar’s dissent. 15 I write separately for two
purposes. First, to dispute the contention that we must ignore the
error here — which was fundamental — since the error was not
raised by the Appellant. Second, to emphasize that I believe
nothing in the record shows the trial court fulfilled “its duty to
independently make a determination of a defendant’s competency
to proceed.” Dougherty v. State, 149 So. 3d 672, 673 (Fla. 2014).
As such remand for further proceedings is necessary. 16

    15I agree with the majority that the discretionary fine and
surcharge must be reversed.

    16 Although I believe Appellant should prevail on the appeal,
I am not sure that “winning” is ultimately in Appellant’s best
interest. He was found guilty of the lesser included misdemeanor
offense of resisting an officer without violence and sentenced to
                                 38
      On my first point, the general rule — as discussed by the en
banc majority — is that error must be raised by an appellant in
the initial brief to be considered by an appellate court. See Doe v.
Baptist Primary Care, Inc., 177 So. 3d 669 (Fla. 1st DCA 2015);
City of Bartow v. Brewer, 896 So. 2d 931 (Fla. 1st DCA 2005); Fla.
R. App. P. 9.210(b)(1)&(5). But like so many areas of law there is
a key exception to the general rule, and the exception applies here.
Even if an issue is not raised by an appellant, “an appellate court
may nonetheless address that issue if it involves the court’s
‘jurisdiction or other issues raising obvious fundamental errors.’”
D.H. v. Adept Cmty. Servs., Inc., 43 Fla. L. Weekly S533, S535,
2018 WL 5660595, *6 (Fla. Nov. 1, 2018) (quoting Alliance for
Conservation of Nat. Res. in Pinellas Cty. v. Furen, 122 So. 2d 51,
65 (Fla. 2d DCA 1960)).

     The ability of an appellate court to address jurisdictional or
fundamental error is not a mere suggestion as the majority claims.
Majority Op. at 4. Rather, it is a well-established holding from the
Florida Supreme Court, this court, and other courts. In Hendricks
v. State, 34 So. 3d 819, 828 (Fla. 1st DCA 2010), we stated:

    Despite Appellant’s failure to argue fundamental error,
    we consider whether the purported error is of
    a fundamental nature         because      it     is      an
    appellate court’s “unrenunciable judicial duty” to
    correct fundamental error even               if           it
    is not raised. See Bain v. State, 730 So. 2d 296, 302 (Fla.
    2d DCA 1999) (called into doubt on other grounds in State
    v. Jefferson, 758 So.2d 661, 664 (Fla. 2000)); see also I.A.
    v. H.H., 710 So. 2d 162, 165 (Fla. 2d DCA 1998) (noting
    that it is an appellate court’s “duty to notice and correct
    ... fundamental errors even when they have not been
    identified by the parties”).

time served. If we were to remand for a competency determination
and if the trial court could not determine whether Appellant was
competent at the time of trial, then at the de novo retrial he would
be subject to the felony charge and potential five-year sentence
from resisting an officer with violence. Compare §§ 843.01 and
843.02, Fla. Stat. (2013).

                                39
See also Bishop v. State, 21 So. 3d 830, 832 (Fla. 1st DCA 2008)
(discussing our “unrenunciable judicial duty” to correct
fundamental error). 17

     A due process violation is fundamental error. “[F]or an error
to be so fundamental that it can be raised for the first time of
appeal, the error must be basic to the judicial decision under
review and equivalent to a denial of due process.” State v. Jackson,
616 So. 2d 1, 3 (Fla. 1993); see also Pressley v. State, 73 So. 3d 834,
836-37 (Fla. 1st DCA 2011) (holding error “equivalent to denial of
due process” to be fundamental error).

     In Dougherty, the Florida Supreme Court held “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.” 149 So. 3d at 679. We recognized this
holding in Dougherty in Zern v. State, 191 So. 3d 962, 965 (Fla. 1st
DCA 2016), where we stated, “Because an independent
competency finding is a due-process right that cannot be waived
once a reason for a competency hearing has surfaced, the trial
court fundamentally erred in failing to make such a finding.”

    In Sheheane v. State, 228 So. 3d 1178, 1180 (Fla. 1st DCA
2017), we held, “It is this right to the trial court’s independent

    17 In determining that no fundamental error occurred here at
least the en banc majority wisely does not attempt to overrule
Hendricks v. State, 34 So. 3d 819 (Fla. 1st DCA 2010), and Bishop
v. State, 21 So. 3d 830 (Fla. 1st DCA 2008). To do so, as suggested
in the concurring opinion of Judge Winokur, would conflict with
various Florida Supreme Court decisions going back over 60 years,
such as D.H. v. Adept Cmty. Servs., Inc., 43 Fla. L. Weekly S533,
2018 WL 5660595 (Fla. Nov. 1, 2018); Bell v. State, 289 So. 2d 388
(Fla. 1973); and Redditt v. State, 84 So. 2d 317 (Fla. 1955). To do
so would also put us in conflict with decisions of other district
courts, such as Bain v. State, 730 So. 2d 296, 302 (Fla. 2d DCA
1999), and Randall v. Griffin, 204 So. 3d 965 (Fla. 5th DCA 2016).

                                  40
assessment of competency that lies at the heart of the due process
requirement.” There, we further held that failure to follow the
dictates of Dougherty “is a denial of due process, resulting in
fundamental error that requires our intervention despite
Appellant’s failure to preserve it below.” Sheheane, 228 So. 3d at
1181. Therefore, based on established case law, we should address
the error which occurred here since it was fundamental error
which deprived Appellant of due process. 18

     As to my second point, no independent determination of
Appellant’s competency occurred here. At the hearing on August
13, 2014, the parties stipulated to Appellant’s competency, and the
trial court was prepared to accept the stipulation. The trial court
may have thought such a stipulation was acceptable since the
relevant events concerning the Appellant’s competency occurred
two months before the Florida Supreme Court in Dougherty held
“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.” 149
So. 3d at 678. 19

    18 I do not contend, as claimed by the en banc majority, that
we must “act as standby appellate counsel and scour the record in
each case for fundamental error.” Majority Op. at 5 n.1. In fact
“scouring” is clearly unnecessary when an error is obvious. By
limiting an appellate court’s ability to address error not raised by
an appellant to only instances of jurisdictional or fundamental
error, our ability to address unpreserved error is appropriately
limited since jurisdictional or fundamental error both have
objective standards. See, e.g., Sanford v. Rubin, 237 So. 2d 134,
137 (Fla. 1970) (defining fundamental error as “error which goes
to the foundation of the case” and noting that an appellate court
should “exercise its discretion under the doctrine of fundamental
error very guardedly”).

    19 In August 2014, there was a split of authority among the
district courts.   The Fifth District allowed stipulations to
competency in Dougherty v. State, 96 So. 3d 984 (Fla. 5th DCA
2012), while the Fourth District disallowed stipulations in
Macaluso v. State, 12 So. 3d 914 (Fla. 4th DCA 2009). This court
and the Florida Supreme Court had apparently not weighed in on
                               41
     The transcripts of the hearings on August 13 and 14, 2014,
show that at no time did the trial court disallow the stipulation or
otherwise make clear that “the court decides” the issue of
competency. See Fla. R. Crim. P. 3.212(c)(7). The written order
finding Appellant to be competent likewise does not show an
independent determination by the trial court; instead it shows only
that the matter came before the court on “the report of Leslie
Dellenbarger, Psy.D.” “[T]hese written reports are advisory to the
trial court” since a defendant’s competency is a legal question for
the trial judge to determine rather than a medical question.
Dougherty, 149 So. 3d at 678. While the parties can stipulate to
the admission of an expert report regarding competency, a trial
court’s determination of competency solely based on the stipulated
admission of an expert report “improperly absolves the trial court
from making an independent determination regarding a
defendant’s competency to stand trial. Id.

    So here, as in Zern, the trial court’s action “does not show an
independent finding.” 191 So. 3d at 965. Reversal and remand for
an independent competency determination is therefore required
per Dougherty, Zern, and numerous other cases. Because the
majority affirms the due process violation which occurred here, I
respectfully dissent.

                 _____________________________


Melissa Joy Ford, Assistant Regional Conflict Counsel, Office of
Criminal Conflict and Civil Regional Counsel, Tallahassee, for
Appellant.

Ashley Moody, Attorney General; Trisha Meggs Pate, Tallahassee
Bureau Chief, Criminal Appeals; Samuel B. Steinberg and Steven
E. Woods, Assistant Attorneys General, Tallahassee, for Appellee.




the issue of stipulations to competency, so the trial judge here was
free to decide whether to follow the Fourth or Fifth District. See
Pardo v. State, 596 So. 2d 665 (Fla. 1st DCA 1992).
                                 42
