                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

SERGIO DUPREE MOORER,                 NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-5040

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed March 4, 2016.

An appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.

Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney
General, Tallahassee, for Appellee.




SWANSON, J.

      Appellant appeals from his judgments and sentences for first-degree murder

and grand theft of an automobile. He contends the trial court erred in failing to

hold a competency hearing prior to trial. We agree and reverse.
      On September 13, 2011, the Escambia County Grand Jury returned an

indictment charging appellant, Sergio Dupree Moorer, with the August 21, 2011,

premeditated murder of John D. Hall, by beating him and setting him on fire. He

was also charged with the theft of Hall’s automobile. The state sought the death

penalty and appellant filed a notice of intent to rely on an insanity defense. In

addition, the state filed a motion to appoint an expert to evaluate appellant,

believing a competency evaluation would be necessary based on appellant’s

“bizarre courtroom behavior” at a previous hearing, his obvious inability to

communicate with his defense attorney, his letters to the judge revealing he was

fighting possession by a demon, and his history of mental health problems.      On

February 22, 2013, the trial court granted the state’s motion and appointed Dr.

Lawrence Gilgun to conduct the evaluation. Dr. Gilgun filed a report in which he

concluded appellant was incompetent to proceed to trial.

      In light of Dr. Gilgun’s report, at a pre-trial conference held on March 1,

2013, the state requested a second expert be appointed. On March 20, 2013, the

trial court issued an order appointing Dr. John Bingham to evaluate appellant’s

competency. On April 15, 2013, Dr. Bingham filed a report finding appellant

competent to stand trial. In light of the conflicting reports, during a May 6, 2013,

status conference, defense counsel and the state agreed it would be necessary for

the trial court to set a date to hold a competency hearing; yet, no competency

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hearing was ever held. Instead, fifteen months later, in August 2014, appellant

went to trial and was found guilty by a jury of the above-referenced crimes. The

jury recommended appellant be sentenced to life imprisonment without the

possibility of parole on the murder charge. The trial court adjudicated appellant

guilty and sentenced appellant in accordance with the jury’s recommendation to

life imprisonment without parole, adding a consecutive five-year sentence on the

charge of grand theft auto. This appeal followed.

      Florida Rule of Criminal Procedure 3.210(b) provides:

              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 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.

It has been held to be “a due process violation to proceed against an incompetent

criminal defendant.” Cotton v. State, 177 So. 3d 666, 667-68 (Fla. 1st DCA 2015)

(citing Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014)). For that reason, and

as dictated by rule 3.210(b), “once a trial court has reasonable grounds to question

competency, the court ‘has no choice but to conduct a competency hearing.’” Id.

at 668 (quoting Monte v. State, 51 So. 3d 1196, 1202 (Fla. 4th DCA 2011))

(emphasis added). See also Brooks v. State, 40 Fla. L. Weekly D2690, 2691 (Fla.
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1st DCA Dec. 4, 2015); Reynolds v. State, 177 So. 3d 296 (Fla. 1st DCA 2015)

(citing Cochran v. State, 925 So. 2d 370 (Fla. 5th DCA 2006)). As was stressed in

Cochran, “once the trial court enters an order appointing experts upon a reasonable

belief that the defendant may be incompetent, a competency hearing must be held.”

Id. at 373. Moreover, Florida Rule of Criminal Procedure 3.212(b) requires that

the trial court enter a written order “memorializing its finding of competency or

incompetency.” Reynolds, 177 So. 3d at 298 (citing Dougherty, 149 So. 3d at 677

(explaining that if the trial court finds the defendant competent, “it must enter a

written order so finding”)).

      Furthermore, there is no legal basis to support the state’s suggestion on

appeal that once the trial court was in receipt of Dr. Bingham’s report claiming

appellant was competent, there was no longer a need to consider appellant’s

competency. Not only does that argument fly in the face of the above-cited

authorities, it disregards the May 6, 2013, agreement between the state and defense

counsel that a competency hearing was required. Lastly, we note nothing in the

record points to the waiver of a competency hearing. Cf. Thomas v. State, 894 So.

2d 1000 (Fla. 1st DCA 2005) (finding waiver where defense counsel affirmatively

agreed with the defendant’s desire to proceed to trial without further competency

proceedings).




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      Based on our analysis, we are compelled to reverse appellant’s judgments

and sentences.     On remand, the trial court shall hold a hearing to determine

appellant’s competency to stand trial. If, however, there is evidence that existed

previously which would have supported a finding that appellant was competent at

the time of trial, the court may make a determination of competency, nunc pro

tunc, with no change in the judgment. Brooks, 40 Fla. L. Weekly at D2691;

Reynolds, 177 So. 3d at 299. We caution, though, that this remedy “is dependent

‘on the circumstances of each case.’”       Brooks, 40 Fla. L. Weekly at D2691

(quoting Dougherty, 149 So. 3d at 678-79). As we held in Brooks, “[w]e leave that

decision to the trial court.” Id.

      REVERSED and REMANDED for further proceedings consistent with this

opinion.



LEWIS and WINOKUR, JJ., CONCUR.




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