         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-1809
                 _____________________________

JOSHUA LEON WALKER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Mark J. Borello, Judge.

                        February 9, 2018


KELSEY, J.

    Appellant raises three issues in this direct appeal from a
judgment and sentence for armed robbery with a deadly weapon.
We find one reversible error that requires further proceedings
below, and affirm on the other two issues.

I. PRE-TRIAL SUGGESTION OF INCOMPETENCE

    Further proceedings are required to establish Appellant’s
competency. Appellant’s counsel filed a Suggestion of Mental
Incompetence in compliance with Florida Rule of Criminal
Procedure 3.210, specifying a factual basis for doubting
Appellant’s competency, representing that an expert had found
Appellant incompetent to proceed, requesting further evaluation,
and certifying that the suggestion was filed in good faith and on
reasonable grounds. The trial court took no action on the
suggestion. Several weeks later, and just a few days before trial,
defense counsel withdrew the Suggestion of Mental
Incompetence. Just a few days after that, between voir dire and
jury selection, defense counsel reported to the court that
Appellant was claiming not to understand the proceedings, but
that counsel had had Appellant evaluated and the report deemed
him competent. Counsel did not file the competency report, but
represented as an officer of the court that Appellant had been
deemed competent. The trial court held no competency hearing
and made no independent adjudication or written determination
of Appellant’s competence. The parties then proceeded to trial.
On the facts of this case, this was reversible error.

     It is a due process violation to proceed against an
incompetent criminal defendant. Dougherty v. State, 149 So. 3d
672, 676 (Fla. 2014); see also Zern v. State, 191 So. 3d 962, 964
(Fla. 1st DCA 2016); Cotton v. State, 177 So. 3d 666, 667-68 (Fla.
1st DCA 2015). Not even the defendant’s own stipulation to
competency relieves the trial court of the obligation to hold a
competency hearing and adjudicate the issue of competency if
there are reasonable grounds to question competency. Dougherty,
149 So. 3d at 677-78.

     A competency hearing is mandatory if there are reasonable
grounds to suggest a defendant is not mentally competent to
proceed with trial. Brooks v. State, 180 So. 3d 1094, 1095 (Fla. 1st
DCA 2015). The trial court must independently determine that
there are reasonable grounds to question the defendant’s
competency before the obligation to hold a competency hearing
arises. Rodgers v. State, 3 So. 3d 1127, 1132 (Fla. 2009) (“Under
rule 3.210(b), the trial court must hold a hearing to determine a
defendant's mental condition only where the court ‘has
reasonable ground to believe that the defendant is not mentally
competent to proceed.’ Fla. R. Crim. P. 3.210(b).” (emphasis
added)). While the trial court is not obligated to accept defense
counsel’s representations about a defendant’s competency, the
court should consider counsel’s representations among all
relevant circumstances. Calloway v. State, 651 So. 2d 752, 754
(Fla. 1st DCA 1995) (“There are no ‘fixed or immutable signs that
always’ require a competency hearing. . . . The trial court must

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consider all the circumstances, including defense counsel’s
representations.”) (citation omitted) (quoting Scott v. State, 420
So. 2d 595, 597 (Fla. 1982)). We review the trial court’s
assessment of the existence of reasonable grounds for an abuse of
discretion. Rodgers, 3 So. 3d at 1132 (“This Court will uphold the
trial court’s decision as to whether such a [competency] hearing is
necessary absent an abuse of discretion.”).

     This record reflects that Appellant’s trial counsel in good
faith filed a suggestion of incompetence asserting a factual basis
for doubting Appellant’s competency and asserting that Appellant
had been evaluated professionally and deemed incompetent.
Although the suggestion requested additional court-appointed
expert evaluation, the court took no action; and counsel arranged
for private evaluation, in which Appellant was deemed
competent. However, the facts that counsel questioned his client’s
competence seriously enough to have him evaluated, the first
evaluator found Appellant incompetent, and counsel filed a good
faith motion in compliance with Rule 3.210, were enough to
constitute reasonable grounds to question Appellant’s
competency. Calloway, 651 So. 2d at 754 (requiring consideration
of the totality of the relevant circumstances); see also Boggs v.
State, 575 So. 2d 1274, 1275 (Fla. 1991) (holding that a
confidential psychiatric expert’s opinion that defendant was
incompetent was sufficient reasonable grounds to activate the
process of Rule 3.210(b)). Once reasonable grounds existed,
defense counsel should have filed the evaluation reports in the
record for the benefit of the trial court and to facilitate appellate
review; and the trial court should have conducted a hearing on
the matter.

     The core due process right at issue is a defendant’s
entitlement to the trial court’s independent assessment of
competency, followed by a court order adjudicating the issue.
Dougherty, 149 So. 3d at 676; Sheheane v. State, 228 So. 3d 1178,
1180 (Fla. 1st DCA 2017) (“It is this right to the trial court’s
independent assessment of competency that lies at the heart of
the due process requirement.”). On these facts, we conclude the
trial court abused its discretion in failing to hold a hearing,
adjudicate Appellant’s competency, and enter an order
memorializing that adjudication.

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     On remand, the trial court must conduct a hearing to
determine if Appellant had been evaluated appropriately and
deemed competent before the trial. If such evidence exists, the
trial court may enter an order finding Appellant competent nunc
pro tunc, in which case there would be no change to Appellant’s
conviction or sentence. Dougherty, 149 So. 3d at 678-79
(determining that “a retroactive determination of competency is
possible” even though “inherently difficult”); Cotton, 177 So. 3d at
668-69. Any such competency report, the transcript of such
hearing, and the order adjudicating competency must be filed of
record to facilitate further appellate review, if any. If the trial
court cannot make a retroactive determination, it must properly
adjudicate Appellant’s present competency and, if the court finds
Appellant competent to proceed, conduct a new trial on his
charges.

II. APPELLANT’S COURTROOM BEHAVIOR.

     Appellant also argues that his later behavior in the
courtroom constituted new evidence of his potential
incompetency. He commented out loud during the proceedings;
and he inflicted apparently superficial cuts on himself the
morning of the first day of testimony, which were medically
treated as a precaution but did not prevent Appellant from
returning to the trial. On this record we reject his arguments that
these additional facts were legally sufficient to require an
additional competency evaluation before continuing with the
trial. See, e.g., Pickles v. State, 976 So. 2d 690, 693-94 (Fla. 4th
DCA 2008) (“Although Pickles engaged in disruptive behavior
and refused to communicate with his attorneys, the court had
dealt with this defendant longer than his own attorney and had
observed his manipulative behavior. . . . From this record we
conclude that the defendant was not denied due process by the
trial court’s refusal to conduct an evidentiary hearing.”).

    REVERSED and REMANDED.

ROWE and JAY, JJ., concur.




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              _____________________________

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


Andy Thomas, Public Defender, and Barbara J. Busharis,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Michael McDermott,
Assistant Attorney General, Tallahassee, for Appellee.




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