       Third District Court of Appeal
                               State of Florida

                           Opinion filed June 20, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2684
                        Lower Tribunal No. 14-870-A-K
                             ________________


                         Sergio M. Hernandez, III,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Monroe County, Wayne M. Miller,
Judge.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney
General, for appellee.


Before EMAS, FERNANDEZ and LINDSEY, JJ.

      EMAS, J.
      INTRODUCTION

      Defendant, Sergio Hernandez, III, appeals from his judgment and sentence

for domestic battery by strangulation and false imprisonment. As his sole issue on

appeal, Hernandez contends that the trial court committed fundamental error in its

determination of Hernandez’s competency to proceed. Specifically, Hernandez

asserts that the trial court failed to make an independent assessment and

independent finding of Hernandez’s competency.          We agree, and reverse and

remand for the trial court to hold a hearing in an effort to make a retrospective

determination of Hernandez’s competency at the time of trial.

      ANALYSIS AND DISCUSSION

      A defendant has a due process right to a competency determination when

there are reasonable grounds to believe that a defendant is incompetent. Nowitzke

v. State, 572 So. 2d 1346, 1349 (Fla. 1990) (holding: “Under both Florida and

federal law, it is well-settled that due process prohibits a person accused of a crime

from being proceeded against while incompetent.”); Maxwell v. State, 974 So. 2d

505, 509 (Fla. 5th DCA 2008) (holding: “When criminal proceedings are held

against a mentally incompetent defendant, the defendant’s constitutional right of

due process is denied”). See also Drope v. Missouri, 420 U.S. 162, 172 (1975)

(holding that the “failure to observe procedures adequate to protect a defendant’s




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right not to be tried or convicted while incompetent to stand trial deprives him of

his due process right to a fair trial.”).

        Florida Rules of Criminal Procedure 3.210-3.212 establish the procedures to

be employed when there is a “reasonable ground to believe that the defendant is

not mentally competent to proceed.” Fla. R. Crim. P. 3.210(b). When such

reasonable grounds exist, the trial court must immediately enter an order setting a

hearing to be held within twenty days to determine the defendant’s mental

condition. The trial court may order the defendant to be examined by no more than

three experts. Id. The expert or experts shall conduct a competency examination,

and shall consider and include in the competency report those factors enumerated

in rule 3.211(a)(2).1 The expert shall submit a written report to the court, setting

forth the procedures, techniques, and tests used in the examination, the

1   That subdivision provides:

        (2) In considering the issue of competence to proceed, the examining
        experts shall consider and include in their report:

        (A) the defendant's capacity to:

        (i) appreciate the charges or allegations against the defendant;
        (ii) appreciate the range and nature of possible penalties, if applicable,
        that may be imposed in the proceedings against the defendant;
        (iii) understand the adversary nature of the legal process;
        (iv) disclose to counsel facts pertinent to the proceedings at issue;
        (v) manifest appropriate courtroom behavior;
        (vi) testify relevantly; and

        (B) any other factors deemed relevant by the experts.

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observations and findings made, and opinions rendered, by the expert, and the

sources of information and factual bases for the expert’s clinical findings and

opinions. Fla. R. Crim. P. 3.211(c).

      The expert’s report may then be considered by the trial court at the

competency hearing. In addition to the report or reports, either party or the court

may call the experts to testify at the competency hearing, and any such expert is

deemed a court witness regardless of whether the expert is called by a party or by

the court. Fla. R. Crim. P. 3.212(a). If the court finds the defendant competent to

proceed, the court shall enter its order so finding.

      At the competency hearing in the instant case, no testimony was taken and

no evidence was offered. The parties merely stipulated to the expert’s written

report; that is, the parties agreed that, if called to testify at the hearing, the expert

would testify consistently with his written report. Here is the entirety of the

hearing held on Hernandez’s competency to proceed:

      THE COURT:                         Sergio Hernandez.

      DEFENSE COUNSEL:                   Judge, the doctor found Mr.
                                         Hernandez competent, and we’ll
                                         stipulate to that finding.

      THE COURT:                         All right. So we’ll make that finding
                                         at this time.

      PROSECUTION:                       The State also [stipulates].




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      There is nothing in the record to suggest that the trial court reviewed or

considered the expert’s report, or made an independent assessment or finding of

Hernandez’s competency. The record (and the single excerpt above) indicates

instead that the trial court found Hernandez competent based solely upon the

parties’ stipulation. However, such a stipulation, while not unusual, is also not

sufficient by itself for a valid determination of competency. In other words, a

stipulation that the expert, if called as a witness, would testify consistently with the

report, is not a stipulation to competency. Indeed, the parties cannot “stipulate” to

a defendant’s competency (or incompetence), as it is an independent legal

determination for the trial court to make after consideration of the expert testimony

or reports, and other relevant factors. Dougherty v. State, 149 So. 3d 672, 678

(Fla. 2014); Shakes v. State, 185 So. 3d 679, 681 (Fla. 2d DCA 2016). The trial

court’s acknowledgment and acceptance of the parties’ stipulation was insufficient

to satisfy the requirements of rule 3.212 and principles of due process. More was

required:

      At the competency hearing, the court must make its own independent
      finding of competence or incompetence. If the parties and the court
      agree, the court may decide the issue based on the experts’ reports
      without receiving any testimony. However, the court must regard the
      reports as advisory only. Further the court is not permitted to merely
      accept a stipulation of competence. In fact, acceptance of a
      stipulation is improper even when all the experts have opined that the
      defendant is competent, as other evidence may indicate incompetence.




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Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016) (citing Dougherty, 149 So.

3d at 677-78) (additional citations omitted). See also Sheheane v. State, 228 So.

3d 1178, 1180 (Fla. 1st DCA 2017) (observing: “It is this right to the trial court’s

independent assessment of competency that lies at the heart of the due process

requirement. The court must make an independent finding of competence or

incompetence—stipulations of competence are not permitted.”).

      The State commendably concedes that the trial court failed to make the

requisite independent competency determination, and further concedes that this

failure constitutes fundamental error that cannot be waived once a reason for a

competency hearing has materialized. See Zern, 191 So. 3d at 965.2

      Nevertheless, the remedy is not simply a reversal for a new trial on remand.

Instead, as the Florida Supreme Court held in Dougherty, the remedy is to reverse

and remand so that

      a nunc pro tunc competency evaluation could 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.”

Dougherty, 149 So. 3d at 679 (quoting Mason v. State, 489 So. 2d 734, 737 (Fla.

1986)).    See also Zern, 191 So. 3d at 965 (reversing and remanding for a


2 We also note that the trial court failed to enter a written order finding Hernandez
competent. This too was error. See Fla. R. Crim. P. 3.212(b) (providing: “If the
court finds the defendant competent to proceed, the court shall enter its order so
finding and shall proceed.”); Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014).

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retrospective determination of competency, holding: “If the court finds that

Appellant was competent at the time of trial, it must enter a nunc pro tunc written

order memorializing this finding with no change in the judgment;” alternatively,

“[i]f the trial court finds that Appellant was incompetent or that a retrospective

determination is not possible in this case, it must hold a new trial, as long as

Appellant is and remains competent on remand.”)

      CONCLUSION

      We therefore reverse and remand for the trial court to conduct a hearing at

which the trial court shall undertake to make a retrospective determination of

whether Hernandez was competent at the time of trial. If the trial court is able to

and does make a finding that Hernandez was competent at the time of trial, it shall

enter a nunc pro tunc written order memorializing such finding with no change in

the judgment or sentence. If the trial court finds that Hernandez was incompetent

at the time of trial, or that a retrospective determination is not possible in this case,

it must then determine whether Hernandez is presently competent to proceed. If he

is competent, the trial court shall hold a new trial.




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