          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4805
                  _____________________________

JESSE A. JOHNSON,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition Alleging Ineffective Assistant of Appellate Counsel—
Original Jurisdiction

                         January 22, 2019


PER CURIAM.

     Jesse A. Johnson raises numerous claims asserting that his
appellate counsel handled his previous appeal in an ineffective
manner. In 2015, we affirmed Mr. Johnson’s conviction for
burglary of a dwelling with a battery, child abuse, battery, and
petit theft. See Johnson v. State, 177 So. 3d 254 (Fla. 1st DCA
2015). In one respect, we agree with Mr. Johnson that his appellate
counsel was ineffective. We grant the petition because appellate
counsel did not address the trial court’s failure to hold a hearing,
or to rule on Mr. Johnson’s competency. We otherwise deny the
petition.

    During the trial court proceedings, the judge on his own
motion ordered that Mr. Johnson be evaluated for competency. See
Florida Rule of Criminal Procedure 3.210(b). When a court has
reasonable grounds to question a defendant’s competency, “the
rules of criminal procedure require the trial court to hold a
hearing.” Reynolds v. State, 177 So. 3d 296, 297 (Fla. 1st DCA
2015). See also McCants v. State, 395 So. 2d 278, 279 (Fla. 1st DCA
1981) (“[T]he trial court has the responsibility to conduct a hearing
for competency to stand trial whenever it reasonably appears
necessary, whether requested or not.”). If a court fails to hold a
competency hearing under these circumstances, reversal is
required. Brooks v. State, 180 So. 3d 1094, 1095 (Fla. 1st DCA
2015).

     Here, the record shows that after raising concerns about Mr.
Johnson’s competency, the trial court ordered a competency
evaluation. But the court did not hold the requisite hearing, or
make an independent competency determination as required by
Rule 3.210(b) and the cases. At a subsequent hearing, the court
asked whether the competency evaluation had been completed, but
it never held a competency hearing, or made a finding that Mr.
Johnson was competent to proceed. This was reversible error.
Brooks, 180 So. 3d at 1095. Also, under our cases, the failure to
raise this meritorious claim on appeal constitutes ineffective
assistance of appellate counsel. See Pamphile v. State, 216 So. 3d
765 (Fla. 1st DCA 2017). Accordingly, we grant the petition on this
issue. On remand, the court may make a nunc pro tunc
determination of competency that Mr. Johnson was in fact
competent to stand trial. If the court cannot make such a nunc pro
tunc determination, however, then it shall grant a new trial.

    Accordingly, we GRANT the petition as to the competency issue
and REMAND for further proceedings. The petition is otherwise
DENIED.

    MAKAR, OSTERHAUS, and JAY, 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.
               _____________________________


Jesse A. Johnson, Petitioner, pro se

Ashley Brooke Moody, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Respondent.




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