          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4366
                 _____________________________

JAMES FARRELL DAVIS JR.,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.

                         August 13, 2019


PER CURIAM.

     James Farrell Davis Jr. was charged with and convicted of
several offenses arising out an altercation with his neighbors over
his missing dogs. He raises five issues in this appeal from his
judgment and sentences, three of which have merit and are
discussed below. We reject his other arguments without further
comment.

     At the outset, we address Davis’ claim that the trial court
committed fundamental error by failing to conduct an adequate
competency hearing before ruling on whether his competency to
stand trial had been restored. Davis was arrested in the summer
of 2014 in connection with this case. After appointing an expert for
a competency evaluation, the trial court determined that Davis
was incompetent to proceed.

     Roughly two years later, on February 27, 2017, a Florida State
Hospital psychologist concluded that Davis no longer met the
criteria for involuntary commitment. After reviewing the
psychologist’s report, the court entered an order on March 28,
2017, declaring that Davis had regained his competency. * But
about a month later, the court issued a separate order appointing
a different psychologist to evaluate Davis’ competency. That expert
issued her report a few weeks later and recommended that Davis
be found competent to proceed. On June 6, 2017, the court
conducted a brief status hearing. The transcript of that hearing
reads as follows:

    Court:        James Davis.

    Defense:      Your Honor, Mr. Davis’ report came back as
                  well and I would like to set him for August
                  as well.

    State:        We would ask for July, Judge.

    Court:        Yeah, he’s been around a long time. June 22
                  pretrial.

     The record contains a case disposition report dated June 6 and
signed by the deputy clerk with a handwritten note that Davis was
“competent to proceed.” Davis proceeded to trial and was
ultimately convicted and sentenced for attempted first-degree
premeditated murder; burglary of a dwelling while armed with a




    * The record shows that the court issued an order on March 1,
2017, for Davis to be transported for a hearing on March 23, 2017,
for the purpose of evaluating Davis’ competency to proceed. There
is no transcript of the hearing in the record, although the case
disposition report signed by the deputy clerk reflects that Davis
was present for the hearing and that he needed “to be re-
evaluated.”

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firearm; shooting at, into, or within a building; and aggravated
assault by threat with a firearm.

     “Once found incompetent, a presumption clings to the
criminal defendant that the state of incompetence persists until a
court, after proper notice and a hearing, finds otherwise.” Molina
v. State, 946 So. 2d 1103, 1105 (Fla. 5th DCA 2006). A proper
hearing to determine whether competency has been restored
generally requires “the calling of court-appointed expert witnesses
designated under Florida Rule of Criminal Procedure 3.211, a
determination of competence to proceed, and the entry of an order
finding competence.” Dougherty v. State, 149 So. 3d 672, 677 (Fla.
2014) (quoting Jones v. State, 125 So. 3d 982, 983-84 (Fla. 4th DCA
2013)). While the parties and the court can agree to decide the
issue of competency based on the experts’ reports without receiving
testimony, the court must regard the reports as advisory only. Id.
at 678. The court cannot dispense with its duty to make an
independent determination about a defendant’s competency by
deferring solely to the expert reports or accepting a stipulation of
competence by the parties. Id.; see also Zern v. State, 191 So. 3d
962, 964 (Fla. 1st DCA 2016).

     Here, there is nothing in the record to suggest that the court
made an independent determination that Davis had been restored
to competency before proceeding to trial. Contrary to the State’s
position, the June 6 status hearing did not constitute an adequate
competency hearing, and the deputy clerk’s notation of competency
in the case disposition report did not amount to a judicial
determination on competency.

      We therefore reverse and remand for a retroactive
determination of Davis’ competency, if possible. Zern, 191 So. 3d
at 965. If the court finds that Davis was incompetent at the time
of trial or that a retrospective determination is not possible, Davis
will be entitled to a new trial if and when he is competent to
proceed. Id.

     If the court finds that Davis was competent at the time of trial,
it must enter a nunc pro tunc written order memorializing this
finding. Id. However, we agree with Davis that his judgment and
sentences must be corrected in the following respects.

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     First, the court must strike the mandatory minimum term of
his life sentence for attempted first-degree premeditated murder
because the allegations in the charging document were not
sufficient to place him on notice that he was subject to an enhanced
sentence under section 775.087(2)(a)3., Florida Statutes (providing
for the imposition of a twenty-five-year mandatory minimum when
a defendant inflicts death or great bodily harm through the
discharge of a firearm). See Bienaime v. State, 213 So. 3d 927, 929
(Fla. 4th DCA 2017) (requiring the State “to allege grounds for
enhancement in the charging document” to pursue an enhanced
mandatory sentence under the 10-20-Life statute).

     Second, the court erred in imposing a discretionary fine and
surcharge, as well as a $300 public defender lien. In addition to
other costs, the written judgment reflected a discretionary cost of
$342.86 under section 775.083, Florida Statutes, and a surcharge
of $17.14 under section 938.04, Florida Statutes. Because these are
discretionary costs, the court was required to specifically
pronounce them at sentencing to afford Davis notice and an
opportunity to be heard. Nix v. State, 84 So. 3d 424, 436 (Fla. 1st
DCA 2012). The court failed to do so and failed to correct its
mistake when Davis raised it in his motion to correct sentencing
error.

    The court also erred by imposing a public defender lien in
excess of the statutory minimum without providing Davis with an
opportunity to contest the amount. Odom v. State, 187 So. 3d 324,
325 (Fla. 1st DCA 2016). Finding this issue preserved as well, the
court is directed to strike the discretionary fine, related surcharge,
and the discretionary portion of the public defender lien.
Lamoreaux v. State, 88 So. 3d 379, 381 (Fla. 1st DCA 2012);
Calhoun v. State, 259 So. 3d 288, 290 (Fla. 1st DCA 2018).

    AFFIRMED in part, REVERSED in part, and REMANDED.

RAY, C.J., and ROWE and OSTERHAUS, JJ., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and David Alan Henson, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Anne C. Conley, Assistant
Attorney General, Tallahassee, for Appellee.




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