         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


ROBERTO J. RAMON,

              Appellant,

 v.                                                   Case No. 5D16-3781

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed May 12, 2017

3.850 Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.

Roberto J. Ramon, Punta Gorda, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.

ORFINGER, J.

       Roberto Ramon appeals the summary denial of his motion for postconviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s

denial of grounds 2 and 3 without comment. However, we reverse the order as to ground

1 and remand for either an evidentiary hearing or sufficient record attachments to

conclusively refute the claim.
       Ramon was charged with a number of felony offenses, including first-degree

murder. He was found to be incompetent to proceed and committed for treatment to

restore his competency. Eventually, he was returned to court based on the assessment

of the mental health provider that his competency had been restored. Apparently, a

competency hearing was held as required by Florida Rule of Criminal Procedure 3.212.

However, while it appears that the trial court made an oral finding that Ramon was

competent to proceed, it did not enter a corresponding written order that reflected this

determination. This was error. When “a trial court finds that a defendant is competent to

proceed, it must enter a written order so finding.” Dougherty v. State, 149 So. 3d 672,

678 (Fla. 2014). However, this will not provide Ramon any relief as trial court error cannot

be raised in a motion for postconviction relief. See Swanson v. State, 984 So. 2d 629,

629 (Fla. 1st DCA 2008).

       Notwithstanding, Ramon’s primary contention in ground 1 is that his trial counsel

was ineffective for failing to advise the trial court that he had relapsed into incompetency

after the competency hearing, but prior to entering his plea, and failing to request a

second competency hearing. Ramon explained that before he was found incompetent,

he experienced auditory hallucinations and was prescribed a battery of drugs, including

anti-depressants and anti-psychotics. After his competency was restored, he claims to

have informed his counsel two months before the plea hearing that he had stopped taking

his medications and the “voices were back and were again cursing him and compelling

him to commit suicide.” Thus, he asserts he did not want to plea to all of the charges.

According to Ramon,

              [h]owever, counsel told [him] that if he explained to the court
              that he was not taking his medications as ordered and was



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              again hearing the voices, he would again be placed back in
              the psychiatric facility and the process would continue to drag
              on. Counsel stated that he might as well plea and get on to
              where he would receive help in prison.

The trial court found that the plea colloquy conclusively refuted this ground because under

oath, Ramon represented that he thoroughly read the written plea forms and stated that

he was taking his medications while in jail and that those medications helped him

understand what was happening at the plea hearing. In support, the trial court attached

the plea and sentencing transcripts, but did not attach the written plea forms.

       We conclude that the records attached to the order do not refute Ramon’s claim

that he was again incompetent and experiencing auditory hallucinations before he

entered his plea. Accordingly, we reverse and remand for either an evidentiary hearing

or sufficient record attachments to conclusively refute ground 1.

       AFFIRMED in part; REVERSED in part; and REMANDED.


SAWAYA, J., and JACOBUS, B.W., Senior Judge, concur.




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