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


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



PERCY OCTAVIO WINGO,                )
                                    )
           Appellant,               )
                                    )
v.                                  )                    Case No. 2D13-4544
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed February 20, 2015.

Appeal from the Circuit Court for Polk
County; Michael E. Raiden, Judge.

Howard L. Dimmig, II, Public Defender,
and Andrea S. Manthorne, Special
Assistant Public Defender, Bartow, for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Dawn A. Tiffin, Assistant
Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

              Percy Octavio Wingo appeals his convictions and sentences for burglary

of a dwelling, grand theft, and criminal mischief. Because there was an inadequate

competency inquiry of a State's witness who was the alleged victim of the crimes and

because the trial court failed to determine whether the witness understood the duty to

tell the truth, we reverse and remand for a new trial.
              Wingo was charged with the burglary of Audra Mullins' residence, along

with charges of grand theft of property from her dwelling and criminal mischief for

damage to the residence or its contents. Wingo filed a motion requesting that the trial

court adopt a finding of incompetency made as to Mullins in two pending criminal cases

against her or, in the alternative, that she be evaluated for competency. Wingo

attached to his motion an order finding Mullins incompetent to proceed to trial due to

mental illness and a second order adopting the order of incompetency in her second

case. The order of incompetency required her to remain in outpatient treatment for

mental illness at Peace River Center and to take psychotropic medication as prescribed

by her attending psychiatrist.

              Prior to Mullins' testimony at trial, the trial court conducted a brief

competency inquiry. Although there was a reference that the court had questioned

Mullins at some point in the past,1 at trial the State and defense agreed that the court

needed to inquire into her competency to testify. Mullins responded to the trial court's

questions regarding her name, age, address, and where she worked. Upon questioning

about her pending criminal case, she informed the court that her case was still pending

but that she had not been to any appointment for mental health treatment and that she

was not taking any medication. She denied that she suffered from any mental illness.

              Upon questioning by defense counsel, Mullins said that she did not know

why she was found incompetent to proceed and that she never got any results from

Peace River. The trial court then asked if she had dealings with Peace River before, if




              1
                  Our record contains no evidence of any prior questioning.



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she had ever been committed to a mental institution against her will, if she had ever

been found incompetent in any other setting, if she had ever been Baker Acted, and if

she had ever been prescribed any type of psychotropic medication. To each question

Mullins responded, "No, sir."

              The trial court then stated, "I'm going to let her testify. She's oriented to

time and place. She's able to describe events in her life in reasonable detail. Seems

alert and oriented." However, Mullins was not questioned regarding her understanding

of the nature of the oath or the moral obligation to tell the truth, and the trial court made

no findings in that regard.

              Mullins testified for the State. She was in jail when the burglary occurred,

and she was the only witness to testify that Wingo did not have permission to enter her

residence. The point of entry was a broken window. About a month after the burglary,

Mullins informed a detective that she found dried blood on one of the vertical blinds

hanging inside the broken window. A DNA profile from the blood on the vertical blind

matched Wingo's DNA profile.

              Wingo's theory of defense was that Mullins hired him to break into her

home because she wanted to blame the burglary on a woman named Valentine Taylor

who was the wife of one of Mullins' former boyfriends. Mullins had a contentious

relationship with Taylor, and Taylor had an injunction entered against Mullins. In fact,

Mullins originally told a detective that she believed her former boyfriend and Valentine

Taylor committed the burglary.

              Mullins denied that she hired Wingo to break into her home and denied

that she knew Wingo. A Facebook account in her name reflected that she sent a friend




                                            -3-
request to Wingo and that he accepted the request. Mullins claimed that the account

was a fake account that someone else created and that she had another Facebook

account that was her real account.

              With respect to the grand theft charge, Mullins was also the only person to

testify that a television, laptop computer, and a new bicycle were missing from her

residence. The allegedly stolen property was never recovered.

              Wingo preserved the issue of Mullins' competency by motion prior to trial

and by requesting a competency determination at trial prior to Mullins' testimony. A

witness is presumed competent to testify until a party places competency at issue. See

§ 90.601, Fla. Stat. (2013); Z.P. v. State, 651 So. 2d 213, 213-14 (Fla. 2d DCA 1995);

State v. Green, 733 So. 2d 583, 584 (Fla. 1st DCA 1999). Wingo placed Mullins'

competency at issue by informing the trial court that Mullins had been found

incompetent to proceed to trial in two criminal cases the State was prosecuting against

her and by challenging her ability to testify competently at trial. "A witness is

incompetent to testify if the trial court determines the witness is (1) unable to

communicate to the jury; (2) unable to understand the duty to tell the truth; or (3) unable

to perceive and remember the events." Rutherford v. Moore, 774 So. 2d 637, 646 (Fla.

2000); see also §§ 90.603, 90.604.

              In Hammond v. State, 660 So. 2d 1152, 1156 (Fla. 2d DCA 1995), the

defense placed at issue the competency of three teenagers who were mentally

challenged. This court determined that the trial court failed to address the three factors

required for competency and "failed to make the specific determinations necessary to

find these mentally challenged youth competent" to testify. Id.; see also Simmons v.




                                            -4-
State, 683 So. 2d 1101, 1104 (Fla. 1st DCA 1996) ("In Hammond, the trial court erred

because it did not address the three factors required to determine competency.");

Coney v. State, 643 So. 2d 654, 655 (Fla. 3d DCA 1994) (determining that in addition to

failing to "adequately inquire into the victim's competency at the time of trial," the error

"was further exacerbated by the fact that no finding was made that the victim

understood the obligation to tell the truth").

              Here, no inquiry was made regarding Mullins' ability to understand the

duty to tell the truth, and nothing indicated that she understood the duty to tell the truth.

The trial court made no findings in this regard but allowed her to testify. The State

argues that even if the trial court's inquiry into Mullins' competency to testify was

inadequate, the error was harmless. We disagree.

              Although there was physical evidence that tied Wingo to the scene,

Mullins was the only person to testify that Wingo did not have permission to enter her

residence. She was also the only person who could identify the items stolen from her

residence that were never recovered. Although she was able to relate her story to the

jury, nothing indicated whether she understood the duty to tell the truth. Therefore, we

reverse Wingo's convictions and sentences and remand for a new trial. See Z.P., 651

So. 2d at 214 (reversing and remanding when the trial "court's inadequate inquiry and

failure to make competency findings" could not be considered harmless because the

child was the State's only eyewitness).

              Reversed and remanded for a new trial.



WALLACE and MORRIS, JJ., Concur.




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