               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



LESTER L. WILLIAMS,                 )
                                    )
           Appellant,               )
                                    )
v.                                  )                    Case No. 2D13-5323
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed July 1, 2015.

Appeal from the Circuit Court for Charlotte
County; George C. Richards, Judge.

Howard L. Dimmig, II, Public Defender,
and J. L. LeGrande, Special Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Jason M. Miller,
Assistant Attorney General, Tampa,
for Appellee.


SILBERMAN, Judge.

              Lester L. Williams seeks review of his judgment and sentences for three

counts of preventing or obstructing extinguishment of a fire and three counts of pulling a

false alarm. Williams argues that the trial court erred by allowing him to stipulate to his

competency instead of holding a competency hearing. We agree and reverse.
              The charges were based on allegations that Williams repeatedly defaced

sprinkler heads in his prison cell in the Charlotte Correctional Institution's Mental Health

Unit. At his first appearance, Williams waived his right to an attorney and opted to

proceed pro se. After reading his pro se pleadings, the trial court became concerned

with Williams' competency and appointed an expert to conduct a competency

evaluation.1 The expert submitted a report recognizing that Williams had a history of

mental health issues but finding Williams competent to stand trial.

              At a pretrial conference hearing, the court noted the expert's conclusions

and asked Williams if he wanted to stipulate to his competency instead of returning to

court for a competency hearing. Williams agreed. The court appointed standby

counsel, and Williams proceeded to trial. Williams admitted to defacing the sprinkler

heads but asserted that he did so to get a sharp object to use to harm himself. Standby

counsel argued that prison officials should have stopped Williams from trying to harm

himself after the first attempt. The jury returned guilty verdicts.

              On appeal, Williams argues that the trial court erred in allowing him to

stipulate to his competency instead of holding a competency hearing. Florida Rule of

Criminal Procedure 3.210(b) sets forth the procedure for determining a defendant's

competence to proceed as follows:

              (b) Motion for Examination. If, at any material stage of a
              criminal proceeding, the court of its own motion, or on
              motion of counsel for the defendant or for the state, has
              reasonable ground to believe that the defendant is not
              mentally competent to proceed, the court shall immediately


              1
               Williams filed numerous pleadings in which he generally asserted that he
was a secret agent on a mission and that the government was conspiring against him.
His pleadings resulted in subpoenas for numerous governmental officials including the
President of the United States.


                                             -2-
              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.
              Attorneys for the state and the defendant may be present at
              any examination ordered by the court.

(Emphasis added.)

              Under the plain language of rule 3.210(b), the terms "shall" and

"immediately" reflect that a hearing is mandatory. Dougherty v. State, 149 So. 3d 672,

677 (Fla. 2014). The "written reports are advisory to the trial court, 'which itself retains

the responsibility of the decision.' " Id. at 678 (quoting McCray v. State, 71 So. 3d 848,

862 (Fla. 2011)). Under these circumstances a defendant may not waive his or her right

to a competency hearing even if the experts unanimously find the defendant competent

to proceed. Id.

              Because the trial court erroneously allowed Williams to stipulate to his

competency, we must reverse. We note that a new trial will not be necessary if there is

sufficient evidence in the record for the court to make a nunc pro tunc competency

evaluation. See id. at 679. But if the court cannot conduct a competency evaluation in

a manner that comports with due process, it must grant Williams a new trial.

              Reversed and remanded.



LaROSE and MORRIS, JJ., Concur.




                                            -3-
