          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.

                        September 5, 2018
PER CURIAM.

     Roger N. Rosier was charged with resisting an officer with
violence, but the trial court entered an order adjudicating him
incompetent to proceed in October 2013. A report from Florida
State Hospital subsequently deemed Rosier competent to stand
trial and a hearing was set for July 9, 2014 (before the original
trial judge), but was put off until August 14, 2014 (before a
different trial judge). At the hearing, the parties stipulated to the
evaluation report and Rosier’s counsel agreed that Rosier was
competent and wanted to proceed to trial. A jury found him guilty
of a lesser charge; he was sentenced to time served and released
from custody.

    Rosier challenges the adequacy of the hearing at which it was
determined that his competency had been restored. A judicial
hearing on the competency of a previously incompetent defendant
cannot be based simply on stipulations and agreement of the
lawyers.

    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.

Ross v. State, 155 So. 3d 1259, 1259 (Fla. 1st DCA 2015) (emphasis
added); see also Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014)
(“Accepting a stipulation improperly absolves the trial court from
making an independent determination regarding a defendant’s
competency to stand trial.”); Belizaire v. State, 188 So. 3d 933, 935
(Fla. 1st DCA 2016) (finding the trial court’s acceptance of defense
counsel’s “stipulation that because both experts found [defendant]
competent, they could proceed with the trial” to be insufficient). An
independent judicial determination is required because a person
adjudicated to be incompetent is presumptively incompetent until
an adjudication that his competency has been restored. Hunter v.
State, 174 So. 3d 1011, 1014 (Fla. 1st DCA 2015) (noting that a
criminal prosecution may not proceed against an incompetent
defendant).

     Here, the competency hearing was perfunctory: 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 and a harm to himself and others
a year earlier—was pronounced competent and a standard order
was issued. As in Ross, the adequacy of the competency hearing is
not met because there is no indication that sufficient judicial
review was done to form an “independent determination that the
defendant’s competency has been restored,” as required. This is
particularly so when the prosecutor and public defender both
mistakenly believed—and had agreed the day before the hearing
(without Rosier present)—that a competency determination could
be done by stipulation (the prosecutor suggesting they do it that
day). The public defender, who preferred a hearing the next day

                                  2
with Rosier present, said the hearing would take only “thirty
seconds” and the trial judge thought even less (“How long is it
going to take, two seconds?), which compounds the appearance
that the hearing was simply to ratify the stipulation versus
independently reviewing and determining whether Rosier’s
competency had been restored. And the evaluation report went
unmentioned throughout the hearing, the trial judge neither
discussing it nor stating she’d reviewed it. Cf. Hunter, 174 So. 3d
at 1014-15 (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 written order,
which simply says the matter came before the court on the
psychologist’s report, doesn’t show that the judge actually
reviewed or relied on it. 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
nondescript language could just as easily support the appearance
that the court was ratifying the stipulation.

     The remedy for the inadequate competency hearing is to
conduct a nunc pro tunc competency evaluation; if one cannot be
done, the defendant must receive a new trial. See Brooks v. State,
180 So. 3d 1094, 1095 (Fla. 1st DCA 2015) (“[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.”).

     Finally, a discretionary fine and surcharge under section
775.083, Florida Statutes, was imposed on Rosier, but not orally
pronounced at sentencing. The State concedes that the fine and
surcharge must be stricken, but on remand the “trial court may
reimpose the fine and surcharge after providing notice to [the
defendant] and following the proper procedure.” Nix v. State, 84
So. 3d 424, 426 (Fla. 1st DCA 2012); see also Simmons v. State, 196
So. 3d 1287, 1288 (Fla. 1st DCA 2016).

    REVERSED and REMANDED for further proceedings.

MAKAR and BILBREY, JJ., concur; ROWE, J., concurring in part,
dissenting in part with opinion.

                                  3
                  _____________________________

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


ROWE, J., concurring in part, dissenting in part.

    I concur with the majority’s decision to strike the fine and
surcharge imposed on Rosier without being orally pronounced.
However, I dissent from the majority’s determination that Rosier’s
competency hearing was inadequate.

     The majority refers to the competency hearing conducted
below as “perfunctory,” but it fails to explain what the trial court
could have or should have done differently. The law is well-settled
that a competency hearing requires the trial court to consider
expert testimony, either live or in written form, to make an
independent determination of the defendant’s competency, and to
enter a written order. Merriell v. State, 169 So. 3d 1287, 1288 (Fla.
1st DCA 2015) (citing Dougherty v. State, 149 So. 3d 672, 677 (Fla.
2014)). It is permissible for a trial court to base a competency
decision solely on the basis of the written reports. Dougherty, 149
So. 3d at 678.

     Here, the record established that a competency hearing was
scheduled after the trial court received a report from the experts
at Florida State Hospital finding Rosier competent to proceed. At
the hearing, defense counsel and Rosier stipulated to the findings
contained in the report. The trial court proceeded to conduct what
was admittedly a limited colloquy of Rosier. But the colloquy was
sufficient for the court to learn 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, which was 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,

                                 4
    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.

These facts demonstrate that the competency hearing was
adequate. See Hunter v. State, 174 So. 3d 1011, 1014-15 (Fla. 1st
DCA 2015) (affirming a finding of competency when a trial court
affirmatively   responded     “Okay”     to   defense    counsel’s
representation during a status hearing that the defendant was
competent where court had previously conducted a competency
hearing and the court considered the expert reports); Merriell, 169
So. 3d at 1288 (affirming a finding of competency made during a
status hearing when the court stated that it had read the
competency evaluations and specifically stated that it found the
appellant competent to proceed).

     Under these facts, I would affirm the order finding Rosier
competent to proceed because the trial court held a hearing,
referenced the expert reports, and spoke to Rosier before arriving
at its independent determination that Rosier was competent to
proceed to trial.

                 _____________________________


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

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.




                                5
