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

XAVIER TYRONE MOORE,                 NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-4848

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed December 5, 2016.

An appeal from the Circuit Court for Escambia County.
Linda L. Nobles, Judge.

Nancy A. Daniels, Public Defender, A. Victoria Wiggins, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Virginia Chester Harris, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant appeals his judgment and sentence for third-degree murder and

possession of a firearm by a convicted felon. The issue is whether the trial court
abused its discretion in denying defense counsel’s motion for mistrial and his

contemporaneous request for a competency hearing following Appellant’s

inexplicable testimony during the state’s cross-examination, which echoed

Appellant’s earlier behavior in the trial proceedings. We reverse.

      “[O]nce a trial court has reasonable grounds to question competency, the court

has no choice but to conduct a competency hearing.” Brooks v. State, 180 So. 3d

1094, 1095 (Fla. 1st DCA 2015) (citing Cotton v. State, 177 So. 3d 666, 668 (Fla.

1st DCA 2015)) (internal quotation marks omitted). We find there were justifiable

reasons in the record that would have required the trial court to direct a competency

evaluation upon defense counsel’s request. Under the circumstances, however, “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.” Id.

(citing Reynolds v. State, 177 So. 3d 296, 298 (Fla. 1st DCA 2015) (citing Dougherty

v. State, 149 So. 3d 672, 679 (Fla. 2014))). “A nunc pro tunc competency evaluation

can be done where ‘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.’”               Id. at 1095-96

(quoting Dougherty, 149 So. 3d at 679).

      On remand, the trial court shall hold a hearing to determine Appellant’s

competency to stand trial. If there is evidence that existed previously that supports

                                          2
a finding that Appellant was competent at the time of his trial, the court may make

a written determination of competency, nunc pro tunc, with no change in the

judgment. Id. at 1096 (citing Cotton, 177 So. 3d at 669). However, if the trial court

cannot make a retrospective determination, it must properly adjudicate Appellant’s

present competency and, if he is found to be competent to proceed, conduct a new

trial. Id. (citing Mason v. State, 489 So. 2d 734, 737 (Fla. 1986) (“Should the trial

court find, for whatever reason, that an evaluation of [the defendant’s] competency

at the time of the original trial cannot be conducted in such a manner as to assure

[the defendant] due process of law, the court must so rule and grant a new trial.”)).

      REVERSED and REMANDED for further proceedings consistent with this

opinion.

MAKAR, JAY, and M.K. THOMAS, JJ., CONCUR.




                                          3
