          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                        VERNSON EDWARD DORTCH,
                               Appellant,

                                       v.

                            STATE OF FLORIDA,
                                 Appellee.

                       Nos. 4D16-2815 and 4D16-2816

                                [April 4, 2018]

   Consolidated appeals from the Circuit Court for the Nineteenth Judicial
Circuit, Okeechobee County; Dan L. Vaughn, Judge; L.T. Case Nos.
472015CF000526A and 472016CF000140A.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato,
Jr., Assistant Attorney General, West Palm Beach, for appellee.

                                   EN BANC

PER CURIAM.

    Competency and the requisite procedure to address the issue lie at the heart
of this appeal. The defendant appeals his judgment and sentence after entering
a nolo contendere plea. He argues the trial court erred in failing to hold a
competency hearing and failing to enter an order on the issue prior to accepting
his plea. We agree and reverse.

   The State charged the defendant with possession of a firearm by a felon,
dealing in stolen property, and giving false information to a pawnbroker. His
attorney filed a written motion for a competency examination, pursuant to
Florida Rule of Criminal Procedure 3.210(b). The motion indicated there were
“reasonable grounds to believe” the defendant was incompetent, but did not
articulate specific facts concerning the defendant’s mental state. The motion
indicated the defendant waived the required twenty-day hearing.
   The trial court granted the motion and appointed an expert. The order
included language reiterating the defendant’s waiver of the hearing. It does not
appear that an examination or a hearing on competency ever took place.

   While incarcerated, the defendant was later charged with a new crime of
aggravated assault by a detainee with a deadly weapon and introducing
contraband into a county detention facility. His attorney did not move for a
competency evaluation in the new case.

   The defendant entered an open plea to both cases nearly a year after his initial
arrest. The trial court accepted the plea and sentenced the defendant to ten
years in prison. The defendant did not move to withdraw his plea. He now
appeals the judgment and sentence in both cases.

    He argues the trial court erred in failing to conduct a competency hearing,
relying on Samson v. State, 853 So. 2d 1116 (Fla. 4th DCA 2003). There, we held
“[a]n individual adjudicated incompetent is presumed to remain incompetent
until [] restored to competence.” Id. at 1116.

   Over the last several years, we have reviewed multiple cases involving the
issue of competency. See, e.g., Bain v. State, 211 So. 3d 139 (Fla. 4th DCA 2017);
Williams v. State, 178 So. 3d 531 (Fla. 4th DCA 2015); R.C. v. State, 157 So. 3d
458 (Fla. 4th DCA 2015); Burns v. State, 884 So. 2d 1010 (Fla. 4th DCA 2004).
Depending on the facts, procedural posture, and arguments made, our
dispositions have varied, possibly giving the appearance of inconsistency at
times. We write to clarify the law in this area.

   One thing is certain: competency requires strict adherence to the Florida
Rules of Criminal Procedure 3.210-212. Dougherty v. State, 149 So. 3d 672,
677-78 (Fla. 2014); Deferrell v. State, 199 So. 3d 1056, 1060-61 (Fla. 4th DCA
2016). Once a trial court has reasonable grounds to believe the defendant is
incompetent and orders an examination, it must hold a hearing, and it must
enter a written order on the issue. See Fla. R. Crim. P. 3.210(b), 3.212(b).1
Failure to do so is fundamental error and requires reversal.



1   Rule 3.210(b) provides:

         If, at any material stage of a criminal proceeding, the court . . . 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, which shall be held
         no later than 20 days after the date of the filing of the motion, and may
         order the defendant to be examined by no more than 3 experts, as needed,
         prior to the date of the hearing.


                                                 2
   This means that to raise the issue of a failure to comply with Florida Rules of
Criminal Procedure 3.210-212 on direct appeal, it is not necessary that a
defendant first file a motion to withdraw plea under Florida Rule of Appellate
Procedure 9.140(2)(A) in cases where the trial court has reasonable grounds to
believe the defendant is incompetent and has ordered an examination. Indeed,
the rules mandate a hearing and an order under such circumstances. This is
true regardless of whether the defendant has previously been declared
incompetent. 2 This mandate does not apply however if the trial court had no
reasonable grounds to believe the defendant is incompetent.

    To require a criminal defendant, who may be incompetent, to file a motion to
withdraw a plea before raising the issue on appeal is unwarranted. If a defendant
is incompetent, confining him to post-conviction relief, without the assistance of
counsel, is not a remedy designed to do justice.

   We therefore recede from our prior decisions in Burns, Williams, and R.C. to
the extent they conflict with our holding. We certify conflict with the First, Third,
and Fifth District Courts of Appeal in Pressley v. State, 227 So. 3d 573 (Fla. 1st
DCA 2017), Garcia-Manriquez, and Hicks.

    Reversed and remanded for further proceedings consistent with this opinion.
The trial court may determine the defendant’s competence nunc pro tunc if
possible. Hawks v. State, 226 So. 3d 892, 894-95 (Fla. 4th DCA 2017). If the
trial court cannot do so, the judgment and sentence should be vacated and the
case set for trial.

   Reversed and Remanded.

GERBER, C.J., WARNER, GROSS, TAYLOR, MAY, DAMOORGIAN, CIKLIN, LEVINE, CONNER,
KLINGENSMITH, and KUNTZ, JJ., concur.

FORST, J., concurs specially with opinion.




Rule 3.212(b) provides: “The court shall first consider the issue of the defendant’s
competence to proceed. If the court finds the defendant competent to proceed, the court
shall enter its order so finding and shall proceed.”
2 We note that we and other District Courts of Appeal have previously required the

defendant to file a motion to withdraw a plea before pursuing the competency issue on
appeal if the defendant had not previously been found incompetent. See Burns, 884 So.
2d at 1012-13; Garcia-Manriquez v. State, 146 So. 3d 134, 134 (Fla. 3d DCA 2014);
Hicks v. State, 915 So. 2d 740, 741 (Fla. 5th DCA 2005). The First and Second Districts
have however reversed judgments and sentences on this issue even without a prior
adjudication of incompetency. See Carrion v. State, No. 2D14-2151 (Fla. 2d DCA Jan.
19, 2018); Sheheane v. State, 228 So. 3d 1178, 1179 (Fla. 1st DCA 2017).

                                              3
FORST, J., specially concurring.

   I join in the court’s opinion to reverse and remand this case, on the basis that
the trial court’s failure to afford Appellant with a competency hearing constituted
fundamental error. In doing so, we are breaking from our own precedent, and
our decision conflicts with the position taken by both the Third and Fifth District
Courts of Appeal (as well as two First DCA opinions). This specially concurring
opinion is written with the goal of providing a more complete picture of the legal
landscape with respect to this issue and this court’s resolution.

   At the time that Appellant entered his nolo contendere plea, he had not
previously been adjudicated incompetent to stand trial. His judgment and
sentence were entered following his plea, and he did not subsequently file a
motion to withdraw plea prior to the instant appeal.             Under similar
circumstances (“reasonable grounds” to believe the defendant was incompetent,
no prior adjudication of incompetence, a plea deal, no motion to withdraw), this
court and others have found no fundamental error and affirmed the lower court’s
disposition or dismissed the appeal for lack of jurisdiction. See, e.g., Burns v.
State, 884 So. 2d 1010, 1011 (Fla. 4th DCA 2004) (affirmed); Hicks v. State, 915
So. 2d 740, 741 (Fla. 5th DCA 2005) (dismissed).

   Recently, this court, in Bain v. State, 211 So. 3d 139 (Fla. 4th DCA 2017),
and Hawks v. State, 226 So. 3d 892 (Fla. 4th DCA 2017), and our sister district
courts in at least three recent opinions have, explicitly or implicitly, found
fundamental error and reversed and remanded for a competency hearing,
notwithstanding the lack of a previous adjudication of incompetence. These
recent opinions provide the impetus to re-examine this issue and provide
guidance to the courts for handling this issue in the future.

                              Factual Background

    The pertinent factual background is presented in the court’s opinion. Despite
the trial court’s ordering the appointment of an expert “for the purpose of
determining competence,” there is no indication an examination was ever
scheduled by either party or the trial court, and the latter never held a hearing
to determine Appellant’s competency.

                               Legal Background

   Appellant argues that, notwithstanding his failure to file a motion to withdraw
his no contest plea to the two charges, this court should hold that the trial court
reversibly erred by failing to conduct a competency hearing once it had
“reasonable ground to believe that the defendant [wa]s not mentally competent
to proceed.” Fla. R. Crim. P. 3.210(b).



                                            4
   A. The Fourth DCA

    In arguing that “Appellant is not foreclosed from relief because this appeal
arrives from a judgment and sentence entered after an open plea,” Appellant
relies upon two opinions from this court that are factually distinguishable from
the instant case as they involved defendants who had previously been
adjudicated incompetent and there was no subsequent adjudication of
competency prior to the defendant accepting a plea deal. In Samson v. State,
853 So. 2d 1116 (Fla. 4th DCA 2003), we held that “[a]n individual adjudicated
incompetent is presumed to remain incompetent until adjudicated restored to
competence.” Id. at 1116. Similarly, in Blackmon v. State, 23 So. 3d 239 (Fla.
4th DCA 2009), we determined that, absent a competency hearing and a written
order stating the defendant was restored to competence, the defendant
“remained incompetent to proceed and his negotiated pleas and subsequent
sentence must be reversed.” Id. at 240.

    By contrast, where the defendant had not previously been adjudicated
incompetent, but there were reasonable grounds to believe the defendant was
incompetent, we have determined that, although “[a]n issue relating to the
voluntary and intelligent nature of the plea falls within the limited class of issues
which a defendant may raise on appeal from a guilty or no contest plea without
having specifically reserved the right to do so,” Burns v. State, 884 So. 2d at
1013, “we do not deem such error ‘fundamental’ so as to obviate the need for
filing a motion to withdraw in the trial court before attacking the voluntariness
of the plea on appeal.” Id. at 1014. We have followed this approach in other
cases to affirm where, as distinct from Blackmon and Samson, the defendant had
not previously been adjudicated incompetent. See Williams v. State, 178 So. 3d
531, 532 (Fla. 4th DCA 2015); R.C. v. State, 157 So. 3d 458, 458 (Fla. 4th DCA
2015).

   As noted above, two recent opinions from this court run counter to the
precedent whereby we reversed only in situations involving a prior finding of
incompetence (Samson and Blackmon), and otherwise affirmed (Burns, et al.). In
Bain, the trial court failed to hold a competency hearing although it “had earlier
ordered a competency evaluation.” 211 So. 3d at 139. We reversed and
remanded for a determination whether a nunc pro tunc competency
determination could be made. Id. In so doing, we failed to address the Burns
approach and instead relied on the opinions in two cases that did not involve a
plea—Deferrell v. State, 199 So. 3d 1056 (Fla. 4th DCA 2016), and Dougherty v.
State, 149 So. 3d 672 (Fla. 2014). Bain, 211 So. 3d at 139-40. We took similar
action in Hawks, again citing cases that did not involve a plea (other than Bain)
and failing to reference or distinguish Burns and the fundamental error analysis
discussed therein. Neither Hawks nor Bain involved a prior adjudication of
incompetence.



                                             5
    B. The Third and Fifth DCAs

    There are a handful of appellate cases from the Third and Fifth Districts
wherein the court dismissed the appeal for lack of jurisdiction due to the
defendant’s failure to file a motion to withdraw plea. See Hanes v. State, 232 So.
3d 1073, 1073 (Fla. 3d DCA 2017); Murphy v. State, 181 So. 3d 574, 574 (Fla.
5th DCA 2015); Garcia-Manriquez v. State, 146 So. 3d 134, 134 (Fla. 3d DCA
2014); Campos-Carriera v. State, 106 So. 3d 483, 483 (Fla. 5th DCA 2013); Bailey
v. State, 21 So. 3d 147, 150 (Fla. 5th DCA 2009); Hicks, 915 So. 2d at 741. There
is one exception in the Fifth District’s dismissal approach: in Anderson v. State,
79 So. 3d 884 (Fla. 5th DCA 2012), the court issued a per curiam affirmance
with a citation to Burns. 3 There is also at least one Fifth District opinion where
the court determined that a failure to find the defendant competent was
fundamental error notwithstanding the defendant’s failure to file a motion to
withdraw plea. See Rumph v. State, 217 So. 3d 1092, 1094-95 (Fla. 5th DCA
2017). However, as in Samson and Blackmon, the defendant in Rumph had been
adjudicated incompetent prior to the plea. Rumph, 217 So. 3d at 1095. 4

    C. The Second DCA

    There are several cases in the Second District in which the court has reversed
and remanded or relinquished jurisdiction for the trial court to determine the
competence of the defendant when a plea was accepted. However, prior to
Carrion v. State, No. 2D14-2151, *2 (Fla. 2d DCA Jan. 19, 2018) (relinquishing
jurisdiction), it appears that all the Second District opinions involved a defendant
who had previously been adjudicated incompetent. See Moulton v. State, 230 So.
3d 934, 934 (Fla. 2d DCA 2017); Golloman v. State, 226 So. 3d 332, 334 (Fla. 2d
DCA 2017); Bylock v. State, 196 So. 3d 513, 514-15 (Fla. 2d DCA 2016); Shakes
v. State, 185 So. 3d 679, 680 (Fla. 2d DCA 2016).

    D. The First DCA


3 Anderson’s plea was subsequently set aside due to the district court’s determination
that his trial counsel was ineffective for failing to timely file a motion to withdraw plea.
Anderson v. State, 183 So. 3d 1146 (Fla. 5th DCA 2015).
4 In Vestal v. State, 50 So. 3d 733 (Fla. 5th DCA 2010), the Fifth District determined

that, per Hicks and Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)c., it “lack[ed]
jurisdiction to consider Vestal’s argument with regard to the plea proceeding because
Vestal did not file a motion to withdraw her plea with the trial court.” Vestal, 50 So. 3d
at 735. In a footnote, the court cited to Samson and Blackmon in noting “[a]n individual
adjudicated incompetent is presumed to remain incompetent until and unless
adjudicated competent again after a hearing,” and “had Vestal been adjudicated
incompetent prior to the entry of the plea, the competency issue would have been
cognizable on direct appeal without a motion to withdraw plea.” Vestal, 50 So. 3d at
735 n.2. This footnote is cited in opinions of the First (Ross) and Second (Shakes)
Districts.

                                                6
    In both Lewis v. State, 190 So. 3d 208, 209 (Fla. 1st DCA 2016), and Ross v.
State, 155 So. 3d 1259, 1260 (Fla. 1st DCA 2015), the First District found that
the trial court erred in accepting the defendant’s plea when there had been a
prior adjudication of incompetency, and no subsequent adjudication of
competency. However, in two other cases, the First District followed Burns in
affirming the trial court’s acceptance of a plea. Pressley v. State, 227 So. 3d 573
(Fla. 1st DCA 2017); Williams v. State, 134 So. 3d 975 (Fla. 1st DCA 2012). In
both Pressley and Williams, there is no indication that the defendant had
previously been adjudicated incompetent. Williams cites to Burns and Pressley
cites to Williams.

   In Sheheane v. State, 228 So. 3d 1178 (Fla. 1st DCA 2017), and Reynolds v.
State, 177 So. 3d 296 (Fla. 1st DCA 2015), two cases that involved a plea-
bargained judgment and sentence and the absence of a prior adjudication of
incompetency, the First District reversed and remanded without attempting to
distinguish its previous Pressley and Williams opinions that instead affirmed.

                                    Analysis

   A. There is no consistency nor acknowledgment of inconsistency

   As detailed in the previous section, Florida appellate courts have generally
taken two approaches to these cases, based on whether the defendant had been
previously adjudicated incompetent. However, none of the opinions discussed
above have acknowledged that there is such a distinction in treatment on appeal.
In fact, in rendering an “against the grain” remand opinion in Reynolds,
Sheheane, Bain, Hawks, and Carrion, the panels failed to acknowledge the
conflict with previous opinions of their court or sister courts. For instance, our
2004 opinion in Burns failed to distinguish its affirmance holding from the
remand holding in this court’s 2003 Samson opinion, just as Blackmon failed to
take note of Burns, and Bain and Hawks failed to acknowledge the contrary
holding in Burns and 2015 opinions in Williams and R.C.

   B. We have jurisdiction to consider this appeal

   In joining the court in answering this question in the affirmative, I first
address the court’s jurisdiction to even consider this appeal, inasmuch as
Appellant pled nolo contendere and failed to file a motion to withdraw plea. On
this basis, the Third and Fifth District Courts have dismissed appeals for lack of
jurisdiction. Section 924.051(4), Florida Statutes (2016), states, “If a defendant
pleads nolo contendere without expressly reserving the right to appeal a legally
dispositive issue, or if a defendant pleads guilty without expressly reserving the
right to appeal a legally dispositive issue, the defendant may not appeal the
judgment or sentence.” However, the Florida Supreme Court has clarified that
this provision does not pose a jurisdictional bar to appellate review and, absent


                                            7
fundamental error, district courts should summarily affirm even “clearly
frivolous” appeals where the defendant pleaded guilty or nolo contendere.
Leonard v. State, 760 So. 2d 114, 119 (Fla. 2000). Accordingly, we have
jurisdiction to consider the instant appeal.

   C. Remand for a determination of competence is appropriate, even in the
      absence of a prior adjudication of incompetence

   As reflected above, in every case that involved a plea of a defendant who had
been previously adjudicated incompetent, the courts have reversed and
remanded for a competency determination and/or a written order of competency,
notwithstanding the defendant’s failure to move to withdraw the plea. Either
implicitly or explicitly, the courts in those cases have found fundamental error
requiring remand to comply with the requirements of Rules 3.210-215. Thus,
the question before us is whether it is any less of a fundamental error to fail to
abide by Rules 3.210-215 in a case where, although there had not been a
previous adjudication of incompetency, the trial court nonetheless “has
reasonable ground to believe that the defendant is not mentally competent to
proceed.” Fla. R. Crim. P. 3.210(b).

   “Florida Rules of Criminal Procedure 3.210-3.212 were enacted to set forth
the required competency hearing procedures for determining whether a
defendant is competent to proceed or has been restored to competency.”
Dougherty, 149 So. 3d at 677 (emphasis added) (citing Mora v. State, 814 So. 2d
322, 333 (Fla. 2002)). Neither the Rule nor Dougherty distinguish the right to
an initial competency hearing from the right to determine if the defendant “has
been restored to competency.”

    “A defendant has a procedural ‘due process right to an independent finding
of competency’ once a competency hearing is required.” Carrion, 2D14-2151, at
*1 (quoting Golloman, 226 So. 3d at 335). “This right cannot be waived, and a
trial court’s failure to make such a finding constitutes fundamental error.” Id.
(quoting Golloman, 226 So. 3d at 335, which in turn cited to Zern v. State, 191
So. 3d 962, 965 (Fla. 1st DCA 2016)). We may review the argument that the trial
court erred in accepting Appellant’s plea without conducting a proper
competency hearing or issuing an order regarding his competency for the first
time on direct appeal. Id. (citing Shakes, 185 So. 3d at 683). In so doing, we
have de novo review. Zieler v. State, 220 So. 3d 1190, 1191 (Fla. 4th DCA 2017).

    When dealing with a defendant who had previously been adjudicated
incompetent, with no intervening adjudication (pursuant to Rule 3.210) of
competence, the trial court must make “an independent legal determination
regarding whether the defendant is competent, after considering the expert
testimony or reports and other relevant factors.” Shakes, 185 So. 3d at 681
(citing Dougherty, 149 So. 3d at 678). When there has been no prior adjudication


                                           8
of incompetency, as in the present case, the safeguards of Rule 3.210 are only
invoked “[i]f defense counsel, the state, or the trial court has reasonable grounds
to suggest that a defendant is not mentally competent to proceed, [in which case]
the court must conduct a competency hearing.” Mairena v. State, 6 So. 3d 80,
85 (Fla. 5th DCA 2009) (emphasis added); see also Hawks, 226 So. 3d at 893
(“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.’” (quoting Monte v. State, 51 So. 3d 1196, 1202 (Fla. 4th
DCA 2011))).

   In the instant case, Appellant’s attorney filed a motion under Rule 3.210(b)
requesting a competency examination, stating there were “reasonable grounds
to believe [Appellant was] incompetent to proceed.” The trial court granted
Appellant’s motion (an implicit acknowledgment of “reasonable grounds”), and
set a competency hearing, although there is no record of any such hearing or
ruling on Appellant’s competence.

      The nature of competency goes to the heart of whether a defendant
      has the capacity to make a cogent, legally binding decision. To find,
      as the trial court did here, there were reasonable grounds to believe
      Appellant may be incompetent, and then allow that same potentially
      incompetent individual to waive his right to determine competency,
      does not comport with due process. This is a denial of due process,
      resulting in a fundamental error that requires our intervention
      despite Appellant’s failure to preserve it below.

Sheheane, 228 So. 3d at 1181.

    Consistent with Sheheane, I agree with the decision to recede from Burns and
its progeny. The failure to apply Rules 3.210-215 and take appropriate measures
once the trial court “makes an initial determination that it has reasonable
grounds to question the competency of a defendant,” Hawks, 226 So. 3d at 894,
notwithstanding the absence of a prior adjudication of incompetence, constitutes
fundamental error that can be raised on direct appeal from a judgment and
sentence entered pursuant to a plea. 5


5 In Hawks, we set forth “three steps” a court must take following an “initial
determination that it has reasonable grounds to question the competency of a
defendant.” Hawks, 226 So. 3d 894.

      First, the court must enter an order that schedules a competency hearing,
      appoints experts to evaluate the defendant’s competency, and satisfies the
      requirements of Rule 3.210(b)(4).

      Second, as required by Rule 3.212(b), the court must hold the scheduled
      hearing during which any party or the court may call the appointed experts

                                             9
    On remand, if the trial court finds Appellant was competent at the time of the
plea hearing, it must enter a nunc pro tunc order, and the judgment and
sentence need not change. Sheheane, 228 So. 3d at 1181 (citing Zern, 191 So.
3d at 965). “If, however, the court cannot make a retroactive determination or it
finds Appellant was incompetent at the time of the hearing, the court must hold
a new hearing [on the merits of the charge(s)], so long as Appellant is presently
competent.” Id.; see also Reynolds, 177 So. 3d at 299 (“Should the trial court
find, for whatever reason, that an evaluation of [a defendant’s] competency at
the time of the original trial cannot be conducted in such a manner as to assure
[the defendant] due process of law, the court must so rule and grant a new trial.”
(alterations in original) (quoting Mason v. State, 489 So. 2d 734, 737 (Fla. 1986))).

                                      Conclusion

   The trial court failed to follow the “three step” procedure set forth in Hawks,
in a case in which there were reasonable grounds to question the competency of
Appellant. I thus join the court’s opinion in concluding that this constitutes
fundamental error requiring that we vacate the conviction and sentence and
remand for further proceedings.

                                *         *          *

        Not final until disposition of timely filed motion for rehearing.




       to testify, and the parties may introduce any other evidence that has
       bearing on the defendant’s competence.

       Third, the court must issue a written order making findings as to the
       competency of the defendant as is specifically required by Rule 3.212(b).

Id. (footnote omitted).

                                              10
