         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-869
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JAMIE PEARL JONES,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Bruce Anderson, Judge.

                         August 7, 2018


PER CURIAM.

    AFFIRMED.

B.L. THOMAS, C.J., and LEWIS, J., concur; MAKAR, J., dissents
with opinion.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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MAKAR, J., dissenting.

     Six months prior to trial, Jamie Pearl Jones—previously
deemed incompetent to stand trial—was adjudged competent to do
so based on his lawyer’s stipulation and a new report that Jones
had regained competency. The pre-trial judge orally announced his
ruling of competency, despite never seeing or seeking a copy of the
new report (essentially relying on defense counsel’s stipulation and
assertion that the report was “confidential”). A standard form
order followed. Under these circumstances, the pre-trial judge
abdicated his responsibility to make an independent
determination that a once-incompetent defendant has become
competent to go to trial. Dougherty v. State, 149 So. 3d 672, 678
(Fla. 2014) (“Accepting a stipulation improperly absolves the trial
court from making an independent determination regarding a
defendant’s competency to stand trial.”); Belizaire v. State, 188 So.
3d 933, 935 (Fla. 1st DCA 2016) (finding the trial court’s
acceptance of defense counsel’s “stipulation that because both
experts found [defendant] competent, they could proceed with the
trial” to be insufficient). A remand and nunc pro tunc competency
evaluation is required, absent which a new trial is required. See
Brooks v. State, 180 So. 3d 1094, 1095 (Fla. 1st DCA 2015) (“[A]
new trial is required only if the trial court is unable to conduct a
nunc pro tunc evaluation of the defendant’s competency at the time
of the original trial.”).

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Andy Thomas, Public Defender, Glenna Joyce Reeves, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.




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