       Third District Court of Appeal
                               State of Florida

                            Opinion filed May 1, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                              No. 3D17-1267
               Lower Tribunal Nos. 10-2941B, 13-2860, 13-810
                            ________________


                                 Jerry Byron,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Nushin G.
Sayfie, Judge.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.

     Ashley Moody, Attorney General, and David Llanes, Assistant Attorney
General, for appellee.


Before EMAS, C.J., and HENDON and MILLER, JJ.

      PER CURIAM.
      Jerry Byron appeals from the trial court’s order denying his motion for

postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850.

Byron asserts the trial court erred in refusing to order a competency evaluation and

conduct a competency hearing following defense counsel’s request for same during

the evidentiary hearing on the underlying postconviction motion.        We affirm

because the record supports the determination that no bona fide question regarding

the defendant's competency had been raised.

      In 2012, Byron pleaded guilty to several crimes (lower court case number

10-2941B) and was sentenced to two years in prison followed by five years’

probation. He violated his probation in 2013 by committing new crimes (lower

court case numbers 13-810 and 13-2860). In 2014, a global plea agreement was

reached: Byron pleaded guilty to the two new substantive cases, admitted to

violating his probation, and was sentenced to eight years in prison.

      In 2015, Byron filed a pro se motion for postconviction relief. He alleged

that, at the time of the 2012 plea and, later, during the 2014 probation violation

proceedings, he was incompetent and that his counsel was ineffective for failing to

request a competency evaluation in 2012 and again in 2014. The trial court found

that, as to the 2012 plea, the claim was time-barred. The trial court set the

remaining claim (concerning the 2014 probation violation proceeding) for an

evidentiary hearing, and appointed counsel to represent Byron.



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      In April 2016, during the pendency of the postconviction proceedings,

Byron was adjudicated incompetent to proceed and was committed to the

Department of Children and Families (DCF). Months later, the hospital evaluated

Byron and indicated he was now competent to proceed. However, when the trial

court appointed two doctors (Dr. Salas and Dr. Jacobson) to reevaluate Byron, they

initially disagreed with the hospital’s competency assessment. The trial court set

the case for a competency hearing.

      The trial court held a competency hearing in January 2017. At the hearing,

the State called Dr. Stein, who had evaluated Byron in November 2016 and who

opined that Byron was competent to proceed.

      The defense, in response, presented testimony from Dr. Jacobson and Dr.

Salas. Although Dr. Jacobson evaluated Byron in April 2016 and determined he

was incompetent at that time, Dr. Jacobson reevaluated Byron in December 2016,

and found him competent to proceed. Dr. Jacobson noted his concerns that Byron

was “malingering” and “exaggerating symptoms.” Dr. Salas also evaluated Byron

in December 2016, but—unlike Dr. Jacobson and Dr. Stein—determined that

Byron was not competent to proceed.

      At the conclusion of the hearing, the trial court found Byron competent to

proceed, but stated he required strict compliance with his medication to remain

competent. The trial court therefore ordered that Byron remain committed at the



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hospital pending the resolution of the postconviction proceedings to ensure

compliance with his medication regimen.

      In April 2017, the trial court held the scheduled evidentiary hearing on

Byron’s postconviction motion. Shortly before the April hearing, Byron was again

evaluated by the hospital and the report indicated that Byron remained competent

to proceed; the competency evaluation report also noted that Byron had been

exaggerating his symptoms. Despite the hospital’s reevaluation and determination

of competency, defense counsel once again expressed concern about Byron’s

competency and ability to testify at the impending evidentiary hearing.

      The only witness the defense intended to call at this hearing was Byron

himself. Given the concerns voiced by defense counsel, however, the trial court

attempted to address Byron directly to inquire about these concerns and ensure

Byron was able to understand the nature and consequences of the proceeding and

to participate in and testify at the hearing. However, Byron refused to speak to the

judge and “completely ignor[ed]” the judge’s questions.

      Because of Byron’s refusal to cooperate, the trial court was left with a

Hobson’s choice of going forward with an evidentiary hearing (at which the only

witness was refusing to cooperate and whose competency was being questioned by

his own counsel) or to again appoint Drs. Jacobson and Salas to evaluate Byron.




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      Soon after, however, Byron finally addressed the court on his own. During

an in-court exchange between the trial judge and Byron’s mother, the trial court

explained that, in 2014, Byron “took a deal” and received a sentence of eight years.

Byron immediately spoke up, stating: “I ain’t took no deal.” The trial court then

engaged in a short colloquy with Byron in which Byron confirmed that he wanted

to testify and wished to proceed with the hearing. Byron testified coherently on

both direct and cross examination, and the trial court later denied the motion for

postconviction relief. Byron now appeals the denial of the motion, contending the

trial court erred by failing to order a competency evaluation at the April 2017

evidentiary hearing, and by failing thereafter to hold a competency hearing.

      We conclude the trial court did not abuse its discretion by denying the

defense’s request to order an additional competency evaluation or to hold an

additional competency hearing. Pickles v. State, 976 So. 2d 690, 692 (Fla. 4th

DCA 2008) (noting: “We review determinations of the trial court not to hold a

competency hearing under an abuse of discretion standard.”) Upon our review of

the record, there were no reasonable grounds to believe that Byron may be

incompetent. As the Florida Supreme Court has explained:

            Florida law provides that a defendant must be given a
            competency examination only if the court or defense
            counsel “has reasonable ground to believe that the
            defendant is not mentally competent to proceed.” Once a
            defendant has been deemed competent, the presumption
            of competence continues throughout all subsequent


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             proceedings. A subsequent competency hearing is only
             required if a bona fide question as to the defendant's
             competency has been raised.

Dessaure v. State, 55 So. 3d 478, 482-83 (Fla. 2010) (emphasis added) (quotations

and citations omitted). See also Thompson v. State, 88 So. 3d 312, 319 (Fla. 4th

DCA 2012) (observing: “Not every manifestation of mental illness demonstrates

incompetence to stand trial; rather, the evidence must indicate a present inability to

assist counsel or understand the charges. Neither low intelligence, mental

deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental

incompetence to stand trial”) (quotations and citations omitted).

      The existence of a “bona fide question as to the defendant's competency”

has not been demonstrated in the instant case.        Instead, the trial court’s own

observations of and interactions with Byron during the evidentiary hearing,

together with the prior evaluations and expert testimony, the competency

reevaluation by the hospital preceding the evidentiary hearing, and the findings of

malingering or exaggeration, support the trial court’s determination and undermine

Byron’s claim that a further competency evaluation was necessary. Pickles, 976

So. 2d at 693-94. See also Youngblood v. State, 651 So. 2d 227, 228 (Fla. 1st DCA

1995) (upholding the trial court where there was sufficient evidence the defendant

had been malingering).

      Affirmed.



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