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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

WILLIAM SALLEE,                              )
                                             )
              Appellant,                     )
                                             )
v.                                           )         Case No. 2D16-5407
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed April 18, 2018.

Appeal from the Circuit Court for
Polk County; Reinaldo Ojeda, Judge.

Howard L. Dimmig, II, Public Defender,
and William L. Sharwell, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and John M. Klawikofsky,
Assistant Attorney General, Tampa, for
Appellee.



LaROSE, Chief Judge.


              William Sallee appeals the judgment and sentences imposed following

entry of his guilty plea. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A),

9.140(b)(1)(A). We affirm his conviction. However, because the trial court made an oral
determination of competency without entry of the requisite written order, we remand for

the trial court to enter a written nunc pro tunc order finding Mr. Sallee competent to

stand trial.

                                       Background

               Mr. Sallee was charged with several offenses arising from his use of a

cellphone to record videos and take pictures of sleeping girls. Questions quickly arose

concerning his competency to proceed. Defense counsel successfully moved for an

order appointing two mental health experts to evaluate Mr. Sallee. See Fla. R. Crim. P.

3.210(b) ("If, at any material stage of a criminal proceeding, the court of its own motion,

or on motion of counsel for the defendant or for the state, has reasonable ground to

believe that the defendant is not mentally competent to proceed, the court shall

immediately enter its order setting a time for a hearing to determine the defendant’s

mental condition . . . ."). Each expert filed a written report concluding that Mr. Sallee

was competent.

               The trial court then conducted a competency hearing. Mr. Sallee attended

the hearing with counsel. Neither side called a witness. Instead, defense counsel

recounted the contents of the experts' reports. Upon questioning by the trial court,

defense counsel conceded that each expert had found Mr. Sallee competent. The State

agreed. The trial court instructed defense counsel to prepare an order finding Mr.

Sallee competent. No such order appears in our records.

               Later, Mr. Sallee pleaded guilty. Pursuant to a negotiated disposition, the

trial court sentenced him to fifteen years in prison followed by fifteen years of probation

as a sexual offender and a sexual predator. The trial court conducted a thorough plea

colloquy with Mr. Sallee.
                                            -2-
                                         Analysis

              Mr. Sallee asserts that the trial court failed to conduct a proper

competency hearing, thereby depriving him of due process. Cf. Dougherty v. State, 149

So. 3d 672, 677 (Fla. 2014) ("Generally, a proper hearing to determine whether

competency has been restored after a period of incompetence requires 'the calling of

court-appointed expert witnesses designated under Florida Rule of Criminal Procedure

3.211, a determination of competence to proceed, and the entry of an order finding

competence.' " (quoting Jones v. State, 125 So. 3d 982, 983-84 (Fla. 4th DCA 2013))).

He insists that as part of the hearing, the trial court was required to receive witness

testimony; and, based upon such testimony, make an independent determination that

he was competent to proceed. He asks us to vacate his convictions, and remand for a

proper competency hearing.

              We note that "[a] judicial determination of incompetence remains valid until

there is a subsequent judicial determination that the petitioner is competent to proceed."

Metzger v. State, 741 So. 2d 1181, 1183 (Fla. 2d DCA 1999) (quoting Downing v. State,

617 So. 2d 864, 866 (Fla. 1st DCA 1993)); see also Dessaure v. State, 55 So. 3d 478,

482-83 (Fla. 2010) ("Once a defendant has been deemed competent, the presumption

of competence continues throughout all subsequent proceedings."). But the trial court

never found Mr. Sallee incompetent. In the absence of a judicial determination to the

contrary, Mr. Sallee is, was, and remains presumptively competent. Cf. Child v.

Wainwright, 148 So. 2d 526, 527 (Fla. 1963) ("A defendant is presumed sane . . . .");

DeFriest v. State, 448 So. 2d 1157, 1157 (Fla. 1st DCA 1984) ("There is a legal

presumption of sanity in criminal proceedings." (citing Campbell v. Stoner, 249 So. 2d



                                            -3-
474 (Fla. 3d DCA 1971)));1 King v. State, 387 So. 2d 463, 464 (Fla. 1st DCA 1980)

(observing first that "if a person is adjudicated to be mentally incompetent, it is

presumed he continues to be so until it is shown his sanity has returned" and then

holding "that the burden [to prove appellant's competency] did not shift to the state

because appellant had not been previously declared incompetent").

              Mr. Sallee claims that the hearing was inadequate to protect his due

process rights not to be tried or convicted while incompetent. See Dougherty, 149 So.

3d at 679 ("[W]e conclude that 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."). He relies on

Reynolds v. State, 177 So. 3d 296, 299 (Fla. 1st DCA 2015), in which the court

reversed a revocation order and resulting sentence "because the trial court failed to hold

a competency hearing prior to accepting Appellant's plea."

              Reynolds is inapposite. Mr. Reynolds received no competency hearing.

Id. at 298 ("[T]he trial court did not hold a hearing on the [competency] issue . . . before

accepting his plea admitting to the probation violation. This was error."). In contrast,

Mr. Sallee had a hearing. See Cochran v. State, 925 So. 2d 370, 373 (Fla. 5th DCA

2006) ("[O]nce the trial court enters an order appointing experts upon a reasonable

belief that the defendant may be incompetent, a competency hearing must be held.").




              1Asused in these cases, the terms "sane" and "insanity" refer to the
criminal defendant's competency.
                                            -4-
              There appears to be no dispute that "where the parties and the judge

agree, the trial [c]ourt may decide the issue of competency on the basis of the written

reports alone." Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971); accord Roman v.

State, 163 So. 3d 749, 751 (Fla. 2d DCA 2015) ("If the parties agree, the trial court can

make its competency determination based solely on experts' reports.").

              The record reflects that defense counsel explained the contents of the

experts' reports, noting that although the reports concluded that Mr. Sallee "is

competent . . . there [are] some things where he's viewed as marginal or that you know

there's questions or concerns about it." Counsel advised the trial court that "what we're

going to need to do is just try and do the best that we can and if there's something that

causes concern where we need to reexamine the question of competency then do that

at that time." Seemingly, defense counsel left it to the trial court to assess Mr. Sallee's

competency based upon the reports. See Dougherty, 149 So. 3d at 679 ("Although the

trial court, when the parties agree, may decide the issue of competency on the basis of

written reports alone, it cannot dispense with its duty to make an independent

determination about a defendant's competency . . . ."); see also Rumph v. State, 217

So. 3d 1092, 1095 (Fla. 5th DCA 2017) ("Competency is a legal rather than a medical

question, and the expert reports prepared by the examiners are merely advisory."). At

the very least, defense counsel's explanation of the experts' reports, without requesting

witness testimony, indicates the parties' agreement that the trial court resolve the issue

of Mr. Sallee's competency solely on the basis of the experts' reports. See Charles v.

State, 223 So. 3d 318, 329-30 (Fla. 4th DCA 2017) ("Although there was not an express

stipulation to decide the issue of competency solely on the basis of Dr. Brannon's



                                            -5-
report, it appears from the record that the parties and the judge agreed to decide the

issue of competency on the basis of the written report alone. Before concluding the

competency hearing, the trial court specifically asked if there was 'a request for anything

else with respect to proceeding forward . . . .' The parties' silence in the face of this

clear opportunity to request either live testimony or additional competency evaluations

demonstrates that the parties agreed to the trial court's procedure of deciding the issue

of competency on the basis of Dr. Brannon's written report alone.").

              We also observe that Mr. Sallee was present at the competency hearing;

the trial court was able to observe his demeanor. We cannot conclude that Mr. Sallee

was deprived of due process. See Holland v. State, 185 So. 3d 636, 637 (Fla. 2d DCA

2016) (concluding that appellant was not deprived of due process where "[a]t Holland's

competency hearing, with Holland present, the court considered the experts' reports, the

statements of defense counsel, and Holland's demeanor").

              At the close of the competency hearing, the trial court directed Mr. Sallee's

counsel to prepare an order memorializing its competency determination. No such

order is in our record. "[I]f a trial court finds that a defendant is competent to proceed, it

must enter a written order so finding." Dougherty, 149 So. 3d at 678; see also Fla R.

Crim. P. 3.212(b) ("If the court finds the defendant competent to proceed, the court shall

enter its order so finding and shall proceed."). This court has held that the failure to

enter a written order requires remand for entry of an order nunc pro tunc. See Hampton

v. State, 988 So. 2d 103, 106 (Fla. 2d DCA 2008) ("Where, as here, a court has orally

found a defendant competent but erroneously failed to enter the required written order,

we have affirmed with directions to enter the order nunc pro tunc."). Consequently, we



                                             -6-
remand this case to the trial court for entry of a nunc pro tunc order finding Mr. Sallee

competent to stand trial.

              Affirmed; remanded with instructions.



KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                            -7-
