       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       SYLVESTER SYLVESTRE,
                             Petitioner,

                                    v.

                          STATE OF FLORIDA,
                             Respondent.

                             No. 4D19-2753

                          [November 20, 2019]

   Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Susan L. Alspector, Judge; L.T. Case
No. 18-001533CF10A.

  Howard Finkelstein, Public Defender, and Lisa S. Lawlor, Assistant
Public Defender, Fort Lauderdale, for petitioner.

   Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

   The defendant in a pending criminal case petitions for certiorari review
of an order that grants the State’s request to have Defendant’s third
competency evaluation video-recorded. As no departure from the essential
requirements of law is shown, we deny the petition.

                               Background

    Defendant was arrested and charged with armed burglary of a dwelling,
felony battery (prior conviction), and possession of cannabis. His attorney
filed a motion to appoint experts to evaluate Defendant’s competence to
stand trial. The first two court-appointed experts reached differing
conclusions: one opined that Defendant was incompetent, while the
second believed Defendant was malingering. The trial court announced it
would appoint a third expert to conduct an evaluation. The State
subsequently filed a written motion seeking the court’s permission to have
the evaluation video-recorded.
   Defendant objected and, as discussed below, the trial court granted the
State’s request that the evaluation be video-recorded. In so doing, the
court noted that the statutes, rules, and caselaw governing competency
evaluations do not preclude video-recording.

    Defendant filed two written objections to the trial court order. The State
filed a response. The trial court then heard legal arguments at a non-
evidentiary hearing. The court noted that Florida Rule of Criminal
Procedure 3.210(b) allows attorneys for the State and the defendant to be
present during any court-ordered competency examinations. It rejected
Defendant’s objection to the video-recording, concluding that allowing
video-recording was not materially different from the State’s lawyer being
present during the evaluation.

   The third competency evaluation of Defendant has been stayed pending
our ruling on the instant petition.

                                  Analysis

   Certiorari lies when there is a departure from the essential
requirements of law which will materially injure the petitioner and cannot
be remedied adequately on appeal. Duckworth v. State, 923 So. 2d 530,
533 (Fla. 4th DCA 2006). “The district courts should exercise [their]
discretion only when there has been a violation of a clearly established
principle of law resulting in a miscarriage of justice.” Combs v. State, 436
So. 2d 93, 96 (Fla. 1983).

   The State has the right to a fair determination and meaningful
opportunity to be heard as to a defendant’s competence to proceed, and
absent a showing of good cause by a defendant, the State has a right to
have a competency evaluation by a court-appointed expert video-recorded.
See Maraman v. State, 980 So. 2d 1096, 1100-01 (Fla. 2d DCA 2008)
(recognizing the right of a person subjected to compelled examination to
have the examination recorded). Although Maraman involved the right of
a defendant to videotape a compelled sanity evaluation by a State expert
under rule 3.216(d), that precedent supports the State’s contention that it
has a similar right under rule 3.210 to be able to video-record a court-
ordered competency evaluation.

   Defendant’s argument that Maraman is distinguishable because the
competency evaluation and determination process is non-adversarial is
not persuasive. The competency hearing is adversarial. At a competency
hearing, either party may introduce evidence beyond the reports and
testimony of the court-appointed experts. Fla. R. Crim. P. 3.212(a) (“The

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experts preparing the reports may be called by either party or the court,
and additional evidence may be introduced by either party.”) (emphasis
supplied). Moreover, the ultimate determination of whether a defendant
is competent to proceed is for the trial court. See Dougherty v. State, 149
So. 3d 672, 678 (Fla. 2014) (recognizing that “[e]ven in a situation where
all the experts opine that a defendant is competent, the trial court could
presumably disagree based on other evidence such as the defendant's
courtroom behavior or attorney representations.”). The trial court is not
bound by the reports or opinions of the experts. Like a defendant, the
State has the right to contest the evaluation procedures and the
conclusions of the court-appointed experts.

    Video-recording the evaluation ensures a complete and accurate record
of the evaluation is available. See Gibson v. Gibson, 456 So. 2d 1320, 1321
(Fla. 4th DCA 1984) (granting a petition for certiorari and directing the
trial court to allow the attendance of a court reporter at a court-ordered
psychiatric evaluation in a civil case). “Both the examiner and patient
should benefit by the objective recording of the proceedings, and the
integrity and value of the examination as evidence in the judicial
proceedings should be enhanced.” Id. The same rationale applies here.
Additionally, video-recording the competency evaluation avoids the
potential that the attorney for the State would need to testify as a fact
witness should a dispute arise about what occurred during an evaluation.

   Defendant’s argument that videotaping the examination unjustifiably
intrudes on his privacy has no merit. As noted by the trial court, the State
has an explicit, absolute right to have an attorney present during the
examination under rule 3.210(b) (“Attorneys for the state and the
defendant may be present at any examination ordered by the court.”). We
agree with the trial court that the presence of a video camera is no more
intrusive than the presence of attorneys witnessing the examination.

                                 Conclusion

    The trial court did not depart from the essential requirements of law or
deny defendant due process in declining to hold an evidentiary hearing in
this case and in overruling Defendant’s objection to the State video-
recording Defendant’s third competency evaluation. The court accepted
all of defense counsel’s proffers as true and acted within its discretion in
granting the State’s request to have this evaluation video-recorded.
Defense counsel’s proffers did not show any legally valid grounds or good
cause to preclude video-recording, and there was no dispute that qualified
experts were available and willing to conduct the video-recorded
evaluation. Accordingly, no evidentiary hearing was required, and we deny

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Defendant’s petition as the trial court did not violate “a clearly established
principle of law resulting in a miscarriage of justice.” Combs, 436 So. 2d
at 96.

   Petition denied.

LEVINE, C.J., WARNER and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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