          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D16-5244
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CHARLES FRANCIS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Jack Schemer, Judge.

                           May 31, 2018

PER CURIAM.

     Appellant challenges his criminal judgment and sentence,
arguing that the trial court erred by not holding a hearing before
finding him competent to stand trial. The state responds that
Appellant waived his right to a competency hearing because the
order finding him competent says that he did.

    There are two problems with the state’s argument.

     First, there is no record support for the trial court’s finding
of waiver. Although Appellant did not object when the trial court
read into the record the report of the court-appointed doctor who
evaluated him and found him competent, there is no indication
that Appellant affirmatively waived his right to a hearing and
the court never gave him an opportunity to present evidence or to
be heard on the issue. Cf. Charles v. State, 223 So. 3d 318, 329-
30 (Fla. 4th DCA 2017) (rejecting defendant’s argument that trial
court’s competency determination did not comport with the rules
of criminal procedure because the court provided the defendant a
“clear opportunity” to present additional testimony and evidence
after the court received and reviewed the court-appointed doctor’s
report finding the defendant competent).

     Second, even if the finding of waiver was supported by the
record, the waiver would have been ineffective because Appellant
was representing himself below and “it is contradictory to argue
that a defendant may be incompetent, and yet knowingly or
intelligently ‘waive’ his right to have the court determine his
capacity to stand trial.” Reynolds v. State, 177 So. 3d 296, 299
(Fla. 1st DCA 2015) (quoting Pate v. Robinson, 383 U.S. 375, 384
(1966)); see also Sheheane v. State, 228 So. 3d 1178, 1181 (Fla. 1st
DCA 2017) (“The nature of competency goes to the heart of
whether a defendant has the capacity to make a cogent, legally
binding decision. To find, as the trial court did here, there were
reasonable grounds to believe Appellant may be incompetent, and
then allow that same potentially incompetent individual to waive
his right to determine competency, does not comport with due
process.”).

     Although the trial court erred, we reject Appellant’s
argument that this error necessarily requires a new trial in this
case. “[P]recedent provides that ‘a retroactive determination of
competency is possible’ when ‘there are a sufficient number of
expert and lay witnesses who have examined or observed the
defendant contemporaneous with trial available to offer pertinent
evidence at a retrospective hearing,’” Zern v. State, 191 So. 3d
962, 965 (Fla. 1st DCA 2016) (quoting Dougherty v. State, 149 So.
3d 672, 678-79 (Fla. 2014)), and we cannot say from our review of
the record that a retroactive competency determination would be
impossible in this case. Accordingly, as we have done in other
cases presenting this error, we reverse and remand for a
retroactive determination of competency. See, e.g., Sheheane, 228
So. 3d at 1181. If the trial court is unable to make a retroactive
competency determination or if the court determines that
Appellant was not competent at the time of trial, a new trial will
be required so long as Appellant is and remains competent on
remand. Id.

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    REVERSED and REMANDED with instructions.

WETHERELL, RAY, 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.
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Andy Thomas, Public Defender, and Kasey Lacey, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Steven Edward Woods,
Assistant Attorney General, Tallahassee, for Appellee.




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