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


                                           IN THE DISTRICT COURT OF APPEAL
                                           OF FLORIDA
                                           SECOND DISTRICT



EDWIN ROMAN,                     )
                                 )
           Appellant,            )
                                 )
v.                               )                    Case No.    2D09-5159
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed February 13, 2015.

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

 Howard L. Dimmig, II, Public Defender,
 and Matthew D. Bernstein, Assistant
 Public Defender, Bartow, for Appellant.

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



KELLY, Judge.

             Edwin Roman appeals from his judgment and sentences for sexual battery

on a person less than twelve years of age, lewd molestation, and battery. He argues

that the trial court erred by failing to hold a competency hearing before proceeding to

trial. We agree.
              While Roman was in custody for the charged offenses, his defense

counsel moved to have him examined by a mental health expert. A court-appointed

expert determined that Roman was mentally incompetent. The trial court adjudicated

Roman incompetent to proceed and committed him to the Department of Children and

Families' treatment facility. A few months later, the expert reported that Roman had

regained competence. Although Roman's competency was discussed at a motion to

suppress hearing with regard to the voluntariness of his statements to police, a hearing

specifically to determine Roman's competence was never held. During trial, the court

noted, "[O]ften times the defense will want [the defendant] to be evaluated by someone

locally that they know. That appears to have been done because there is no other

explanation. So as far as I'm concerned mental health issues in this case were amply

explored by [defense counsel]."

              "Once found incompetent, a presumption clings to the criminal defendant

that the state of incompetence persists until a court, after proper notice and a hearing,

finds otherwise." Molina v. State, 946 So. 2d 1103, 1105 (Fla. 5th DCA 2006). Florida

Rule of Criminal Procedure 3.212(c)1 provides that when the court receives notice that a



              Rule 3.212(c) states, in pertinent part, as follows:
              1



              (6) The court shall hold a hearing within 30 days of the receipt of
              any such report from the administrator of the facility on the
              issues raised thereby. If, following the hearing, the court
              determines that the defendant continues to be incompetent to
              proceed and that the defendant meets the criteria for continued
              commitment or treatment, the court shall order continued
              commitment or treatment for a period not to exceed 1 year.
              When the defendant is retained by the facility, the same
              procedure shall be repeated prior to the expiration of each
              additional 1-year period of extended commitment.



                                           -2-
defendant has regained competence, the court shall hold a hearing to determine if a

defendant is competent to proceed. Jackson v. State, 880 So. 2d 1241, 1242 (Fla. 1st

DCA 2004) ("A defendant's legal status cannot be adjudicated from incompetent to

competent without the benefit of a hearing."). A hearing to determine whether

competency has been restored requires the calling of court-appointed expert witnesses,

a determination of competence, and the entry of an order adjudicating the defendant to

be competent to proceed. S.B. v. State, 134 So. 3d 528, 529 (Fla. 4th DCA 2014). If

the parties agree, the trial court can make its competency determination based solely on

experts' reports. Blow v. State, 902 So. 2d 340, 342 (Fla. 5th DCA 2005). "Until the

presumption of continued incompetence dissipates, the defendant may not be tried for

the crimes for which he or she is charged. Violation of this principle constitutes

fundamental error." Molina, 946 So. 2d at 1105-06 (citing Jackson, 880 So. 2d 1241).

A defendant who is presumptively incompetent cannot waive his right to a competency

determination. Metzgar v. State, 741 So. 2d 1181, 1183 (Fla. 2d DCA 1999).

              In this case, the parties did not stipulate to have the trial court decide

Roman's competency on the basis of experts' reports. Rather, the court improperly

assumed that defense counsel had investigated Roman's competence. See Jones v.

State, 125 So. 3d 982, 984 (Fla. 4th DCA 2013) (holding that the task of determining

competency "is expressly left to the trial judge and that authority may not be delegated

to the lawyers in the case"); Macaluso v. State, 12 So. 3d 914 (Fla. 4th DCA 2009)



              (7) If, at any time after such commitment, the court decides,
              after hearing, that the defendant is competent to proceed, it
              shall enter its order so finding and shall proceed.




                                            -3-
(concluding that after the defendant had been found to be incompetent, the trial court

abused its discretion in declining to conduct a competency hearing before holding trial

based on defense counsel's representation that the defendant had been evaluated and

had regained competence), approved by Dougherty v. State, 149 So. 3d 672 (Fla.

2014).

              "Generally, the remedy for a trial court's failure to conduct a proper

competency hearing is for the defendant to receive a new trial, if deemed competent to

proceed on remand." Dougherty, 149 So. 3d at 678-79 (citing Pate v. Robinson, 383

U.S. 375, 386-87 (1966), and Tingle v. State, 536 So. 2d 202, 204 (Fla. 1988)).

However, a new trial may not be necessary if the defendant's competency can be

determined retroactively. Id. at 679. "[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.' " Id. (quoting Mason v. State, 489 So. 2d

734, 737 (Fla. 1986)). Nevertheless, if the trial court finds that an evaluation of the

defendant's competency at the time of trial cannot be conducted in such a manner as to

assure the defendant due process of law, the court must grant a new trial. Id.

              We set aside Roman's convictions and remand for a competency hearing.

If the trial court can determine retroactively that Roman was competent to proceed

before the trial commenced, the convictions and sentences may be reinstated.

Because of this possibility, we must address Roman's remaining argument on appeal

that his sentence of fifty-five years in prison followed by twenty-five years of probation is

cruel and unusual punishment under the Eighth Amendment to the United States




                                            -4-
Constitution and article I, section 17 of the Florida Constitution and violates Graham v.

Florida, 560 U.S. 48 (2010). The Supreme Court in Graham held that a defendant who

was a juvenile when he or she committed a nonhomicide offense cannot be sentenced

to life in prison without any opportunity for release. Id. at 74-75. Roman, who was

seventeen years old when the offenses occurred, contends that although the trial court

did not sentence him to life in prison, the sentence he received violates the spirit of

Graham because it is the functional equivalent of a life sentence.

              This court has interpreted Graham to prohibit the imposition of an actual

life sentence on a juvenile offender for a singular nonhomicide offense, not to prohibit a

lengthy term-of-years sentence that may constitute a de facto life sentence. Walle v.

State, 99 So. 3d 967, 970 (Fla. 2d DCA 2012) (analyzing the factors in Graham for

determining whether a total sentence of sixty-five years for eighteen offenses is

constitutionally excessive as applied to a juvenile); see also Lee v. State, 130 So. 3d

707, 710 (Fla. 2d DCA 2013) (following Walle and affirming a juvenile offender's forty-

year prison term); Young v. State, 110 So. 3d 931, 935-36 (Fla. 2d DCA 2013)

(upholding four concurrent thirty-year prison sentences imposed on a defendant who

was fourteen and fifteen years old when he committed a series of armed robberies).

Because the argument made by Roman has previously been rejected by this court, we

are constrained to affirm Roman's sentence.

              However, because the First District has held that a term-of-years sentence

that results in a de facto life sentence is illegal, Adams v. State, 37 Fla. L. Weekly

D1865 (Fla. 1st DCA Aug. 8, 2012), we certify conflict. See Walle, 99 So. 3d at 973

(certifying conflict with Adams).




                                            -5-
              Accordingly, we reverse Roman's convictions and remand so that the trial

court can conduct a competency hearing. If a retroactive determination of competency

is possible, Roman's convictions and sentences may be reinstated. If the trial court

cannot determine from the record that Roman was competent before trial, the court

must grant a new trial.

              Reversed and remanded.




DAVIS, C.J., and LaROSE, J., Concur.




                                          -6-
