       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                      DANIEL EDWARD PANARO,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                            Nos. 4D16-1179
                            and 4D16-1180

                          [February 21, 2018]

   Consolidated appeals from the Circuit Court for the Nineteenth Judicial
Circuit, Martin County; Lawrence Michael Mirman, Judge; L.T. Case Nos.
43-2015-CF-000870-A and 43-2015-CF-001008-A.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   We conditionally affirm appellant’s sentences for dealing in stolen
property and giving false information to a pawnbroker, imposed after a
jury trial. See Alfonso-Roche v. State, 199 So. 3d 941, 945 (Fla. 4th DCA
2016).

  As the state concedes, there is a problem surrounding the issue of
appellant’s competency.

    In this case, defense counsel moved to appoint an expert to examine
appellant for his competency to proceed. The trial court ordered a mental
examination of appellant. It is unclear from the record as to whether the
trial court made an independent determination of appellant’s competency.
According to appellant’s initial brief, defense counsel informed the trial
court that appellant was found competent following an evaluation, and the
progress notes state, “Court minute: defendant present with attorney;
attorney given court date in open court, competency evaluation
completed―found competent per defense attorney, docket sounding
11/17/15 at 2 p.m.” Thus, it appears that defense counsel may have
stipulated to appellant’s competency based on the court-ordered
evaluation.

    Such a stipulation does not “absolve[ ] the trial court from making an
independent determination regarding a defendant’s competency to stand
trial.” Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014). “A trial court
has the duty to make an independent determination of a criminal
defendant’s competency to proceed.” Charles v. State, 223 So. 3d 318, 329
(Fla. 4th DCA 2017). “A defendant cannot stipulate to the ultimate issue
of competency, because ‘[a]ccepting a stipulation improperly absolves the
trial court from making an independent determination regarding a
defendant’s competency to stand trial.’” Id. at 329 (quoting Dougherty,
149 So. 3d at 678). “Although the trial court, when the parties agree, may
decide the issue of competency on the basis of written reports alone, it
cannot dispense with its duty to make an independent determination
about a defendant’s competency, and must enter a written order if the
defendant is found competent to proceed.” Dougherty, 149 So. 3d at 679;
see also Fla. R. Crim. P. 3.212(b) (“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.”).

   This is not a case where the record contains the trial court’s oral ruling
determining competency. See Holland v. State, 185 So. 3d 636, 637 (Fla.
2d DCA 2016) (case remanded because there was no written order
memorializing the trial court’s oral determination of defendant’s
competency, as required by law, with directions for the trial court to enter
a nunc pro tunc order finding defendant competent).
   “Generally, the remedy for a trial court’s failure to conduct a proper
competency hearing is for the defendant to receive a new trial, if deemed
competent to proceed on remand.” Dougherty, 149 So. 3d at 678-79. “A
new trial is not always necessary where the issue of competency was
inadequately determined prior to trial; a retroactive determination of
competency is possible.” Id. at 679.

   “[W]here the issue of competency was inadequately determined below,
a retroactive determination of competency may be possible where there are
enough expert and lay witnesses who examined or observed the defendant
contemporaneous with the relevant stage of the proceeding and are
available to offer pertinent evidence at a retrospective hearing.” Presley v.
State, 199 So. 3d 1014, 1019 (Fla. 4th DCA 2016) (citing Dougherty, 149

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So. 3d at 679). “Thus, on remand, if the court is able to make a nunc pro
tunc finding as to the [defendant]’s competency in a manner which
comports with due process considerations, then it should do so and enter
a written order accordingly.” A.L.Y. v. State, 212 So. 3d 399, 404 (Fla. 4th
DCA 2017). “On the other hand, if the court should find, for any 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, then the court should hold a new [trial] upon the court
determining that the [defendant] is competent to proceed.” Id.
    Therefore, consistent with Dougherty and our precedent, we reverse and
remand for a nunc pro tunc competency determination. If, however, the
trial court cannot determine appellant’s competency at the time of trial
consistent with due process guarantees, the trial court should vacate
appellant’s judgment and sentence and hold a new trial if appellant is
deemed competent to proceed on remand.

   Reversed and remanded.

FORST and KUNTZ, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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