                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA

MARK ENGLISH,                            NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
      Appellant,                         DISPOSITION THEREOF IF FILED

v.                                       CASE NO. 1D16-2133

STATE OF FLORIDA,

      Appellee.


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Opinion filed November 15, 2017.

An appeal from the Circuit Court for Leon County.
Hon. Kevin J. Carroll, Judge.

Michael J. Titus, Assistant Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney
General, Tallahassee, for Appellee.



PER CURIAM.

      Mark English challenges the trial court’s failure to conduct a competency

hearing, as well as his battery convictions under double jeopardy principles.

Concerning the battery convictions, the batteries were predicated on distinct acts and

occurred during different criminal episodes. As there is no double jeopardy

violation, we affirm as to this issue.
      Concerning the failure to conduct a competency hearing, the trial court entered

an order, which stated that the court had “reasonable grounds to believe that the

Defendant may be incompetent to proceed,” appointed an expert for a competency

evaluation, and scheduled a hearing on the issue. However, no competency hearing

occurred on that date, and the court did not issue an order determining the defendant

competent to proceed to trial. After a trial, Appellant was convicted and sentenced.

      The State concedes error, if there were reasonable grounds to conduct a

hearing. Here, there were reasonable grounds. Reynolds v. State, 177 So. 3d 296,

298 (Fla. 1st DCA 2015) (where “the trial court apparently had reasonable grounds

to believe that Appellant was not competent to proceed because the court appointed

an expert to evaluate Appellant”). “[I]f a ‘reasonable ground to believe that the

defendant is not mentally competent to proceed’ exists, then the requirement that the

court hold a hearing is mandatory.” Trueblood v. State, 193 So. 3d 1060, 1061 (Fla.

1st DCA 2016). Accordingly, the trial court erred.

      On remand, the trial court shall conduct a nunc pro tunc evaluation of the

defendant’s competency at the time of the original trial; if unable, a new trial is

required. Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014) (stating that a new trial

is unnecessary where a retroactive determination of competency is possible); see

also Brooks v. State, 180 So. 3d 1094, 1095 (Fla. 1st DCA 2015) (“If the trial court

fails to hold a competency hearing or enter a written order of competency, reversal

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is required; however, a new trial is required only if the trial court is unable to conduct

a nunc pro tunc evaluation of the defendant’s competency at the time of the original

trial.”).



       AFFIRMED in part; REVERSED in part; REMANDED in part with
instructions.

WETHERELL, RAY, and MAKAR, JJ., CONCUR.




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