       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      JASMINE CLARISE LITTLE,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-2611

                              [May 8, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Michael Mirman, Judge; L.T. Case No.
432015CF000236A.

  Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

   Appellant Jasmine Little appeals her conviction and sentence as an
adult for aggravated battery on specified officials or employees. Although
she raises three issues on appeal, we will only address Little’s contention
that the trial court erred in failing to hold a competency hearing or enter
an order on competency after appointing an expert to determine her
competency. On this point, we agree. We affirm on the other issues.

    While a resident at Martin Girls Academy, a high and maximum-risk
Department of Juvenile Justice program, Little threw a shelf at an
instructor, hitting her in the face and causing injury. The State direct-
filed the case in adult court pursuant to section 985.557(1)(a), Florida
Statutes (2016). The trial court found Little incompetent to proceed based
on evaluations from two doctors. Consequently, she was committed for
competency restoration.

   Three months later, a third doctor found Little competent to proceed,
resulting in her discharge from commitment. Shortly thereafter, the
defense moved for another competency evaluation, but this time the court
found her competent and entered a written order nunc pro tunc based on
that evaluation.

    In September 2016, defense counsel again moved for an evaluation of
Little’s competency. The trial court granted the motion and appointed a
doctor to conduct the evaluation. However, the record does not contain
any reference to, or transcript of, a competency hearing held on that
motion, nor is there a written order after the September 2016 motion
finding Little competent.

   Ultimately, Little pled no contest to the charges and requested a
juvenile sentence. The trial court denied her request and sentenced her
to adult sanctions, which included two years of house arrest followed by
eight years of probation. This appeal follows.

    “The procedure for determining a defendant’s competency is governed
by Florida Rules of Criminal Procedure 3.210 through 3.215. We review
the court’s judgment and its compliance with these rules de novo.” Hawks
v. State, 226 So. 3d 892, 893 (Fla. 4th DCA 2017).

   In Hawks, this court stated:

      Under Rule 3.210, “once a trial court has reasonable grounds
      to believe that a criminal defendant is not competent to
      proceed, it has no choice but to conduct a competency
      hearing.” Monte v. State, 51 So. 3d 1196, 1202 (Fla. 4th DCA
      2011) (citing Fla. R. Crim. P. 3.210–3.212). The court’s
      obligation is triggered upon its initial finding that occurs when
      it enters an order appointing an expert to evaluate a
      defendant’s competency. Id.; see also Moorer v. State, 187 So.
      3d 315, 317 (Fla. 1st DCA 2016). Rule 3.210 is clear and is
      designed to “safeguard a defendant’s due process right to a
      fair trial and to provide the reviewing court with an adequate
      record on appeal.” Dougherty v. State, 149 So. 3d 672, 676
      (Fla. 2014).

      ....

      Further, Florida Rule of Criminal Procedure 3.212(b)
      “mandates the entry of a written order of competency.”
      Holland v. State, 185 So. 3d 636, 637 (Fla. 2d DCA 2016)
      (citing Dougherty, 149 So. 3d at 677). Even if an evaluation
      indicates that a defendant is competent to proceed, the law

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      requires the court to issue a written order finding the
      defendant competent. Deferrell v. State, 199 So. 3d 1056,
      1061 (Fla. 4th DCA 2016).

226 So. 3d at 893–94.

    Here, the trial court entered an order appointing an expert to evaluate
Little’s competency. “[O]nce a trial court has reasonable grounds to
question competency, the court ‘has no choice but to conduct a
competency hearing.’” Cotton v. State, 177 So. 3d 666, 668 (Fla. 1st DCA
2015) (quoting Monte, 51 So. 3d at 1202); accord Fla. R. Crim. P. 3.210(b).
When a court fails to conduct such a competency hearing, it violates the
requirements of rules 3.210 and 3.212 and thus, violates due process. See
Dougherty, 149 So. 3d at 679; accord Moulton v. State, 230 So. 3d 934,
938 (Fla. 2d DCA 2017). The same holds true where a defendant’s
competency to enter a plea is at issue. See Charles v. State, 246 So. 3d
436, 437 (Fla. 4th DCA 2018) (stating that the State “properly conceded
error” where the trial court imposed judgment and sentence after a plea
although it made no competency finding).

    As in Charles, the State also concedes error in this case. See id. The
trial court never conducted a competency hearing or entered a written
order determining competency after it ordered a competency evaluation for
Little in September of 2016. As we have recently held in Machin v. State,
No. 4D17-2787, 2019 WL 1549376, at *3 (Fla. 4th DCA April 10, 2019),
the proper remedy in such cases is to temporarily remand the case to the
circuit court to hold a hearing and make a written determination as to
whether it can make a nunc pro tunc determination of the defendant’s
competency. See Dougherty, 149 So. 3d at 679 (“[A] nunc pro tunc
competency evaluation c[an] be done where ‘there are a sufficient number
of expert and lay witnesses who have examined or observed the defendant
contemporaneous with trial available to offer pertinent evidence at a
retrospective hearing.’” (quoting Mason v. State, 489 So. 2d 734, 737 (Fla.
1986))).

    We therefore remand for the trial court to hold a competency hearing
within sixty days. Depending on the outcome of this hearing, the court
shall proceed with one of the paths outlined in Machin, 2019 WL 1549376,
at *3.

   Remanded for further proceedings.

MAY and CIKLIN, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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