       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         ROBERT R. RAMSAY,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-951

                             [March 4, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin  County;   Sherwood    Bauer,    Judge;   L.T.   Case    No.
432015CF001139A.

    Jonathan S. Friedman of Jonathan S. Friedman, P.A., Fort Lauderdale,
for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

   Robert Ramsay appeals the circuit court’s nunc pro tunc competency
order entered on remand in an earlier appeal, case number 4D18-34.
Ramsay v. State, 259 So. 3d 132 (Fla. 4th DCA 2018). We sua sponte treat
this appeal as a motion to enforce our mandate in Ramsay, grant the
motion, and reverse the order entered on remand.

   In Ramsay, Ramsay argued the court erred when it failed to conduct a
competency hearing after ordering a competency evaluation. Id. at 132.
On the State’s confession of error, we remanded the case to allow the court
to make a nunc pro tunc competency determination, if possible. Id. at
133. We stated:

      [W]e remand to allow the trial court to conduct a nunc pro
      tunc competency determination, if possible. Should the trial
      court find, for whatever reason, that an evaluation of the
      defendant’s competency at the time of the trial cannot be
      conducted in such a manner as to assure the defendant due
        process of law, the trial court must so rule and grant a new
        trial.

Id. 1

   On remand, the court and counsel spent a considerable amount of time
discussing the remand instruction. Ultimately, over Ramsay’s objection,
the court made a nunc pro tunc competency determination dating to the
date of an expert’s report. But that report was completed two years before
the trial, and the instructions on remand required the court to conduct
“an evaluation of the defendant’s competency at the time of the trial.” Id.

   We think that the instruction was clear, and the circuit court was
required to comply with it. See State v. Gomez, 247 So. 3d 592, 593 (Fla.
3d DCA 2018).

    Next, we must determine the appropriate disposition. This Court has
the authority to enforce its mandate. See art. V, § 4(b)(3), Fla. Const.; §
35.08, Fla. Stat. (2020); see also Posner v. Posner, 257 So. 2d 530, 535
(Fla. 1972) (“This Court has inherent power to enforce its mandates and
to give such judgment, sentence, or decree as the court below should have
given.”).

   But we, and our sister courts, have inconsistently disposed of appeals
in similar situations. In some cases, a motion to enforce mandate is
treated as a new proceeding: a petition to enforce mandate. Dow Corning
Corp. v. Garner, 452 So. 2d 1, 1 (Fla. 4th DCA 1984) (citing Stuart v. Hertz
Corp., 381 So. 2d 1161, 1163 (Fla. 4th DCA 1980)). At the same time, two
courts have treated a petition for writ of mandamus as a motion to enforce
mandate in the original appeal. Hankerson v. State, 897 So. 2d 555, 555
(Fla. 5th DCA 2005); Basic Energy Corp. v. Hamilton Cty., 667 So. 2d 249,
250 n.1 (Fla. 1st DCA 1995).

   In other cases, a new appeal is treated as a motion to enforce mandate
in the original case. Elder v. State, 268 So. 3d 995, 996 (Fla. 2d DCA
2019); Gomez, 247 So. 3d at 593; Bleakley v. Bleakley, 744 So. 2d 1019,
1021 (Fla. 4th DCA 1997). But we have also enforced our mandate in the
new appeal. State v. Peters, 604 So. 2d 539, 540 (Fla. 4th DCA 1992).


1In April 2019, after we issued Ramsay and after the circuit court concluded the
proceedings on remand in this case, we issued an en banc opinion clarifying the
appropriate remand instructions in future cases presenting this issue. See
Machin v. State, 267 So. 3d 1098, 1101–02 (Fla. 4th DCA 2019) (on reh’g en banc).

                                       2
   Consistent with the holdings of our sister courts in Elder, Gomez,
Hankerson, and Basic Energy Corp., we adhere to Bleakley and treat this
appeal as a motion to enforce our mandate in Ramsay. We grant the
motion, reverse the competency order entered on remand, and again
remand with instructions to comply with the mandate in Ramsay.

   Reversed and remanded.

CIKLIN and CONNER, JJ., concur.

                          *        *        *

   Not final until disposition of timely filed motion for rehearing.




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