            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                   _____________________________

                           No. 1D17-5399
                   _____________________________

JAMAR GLENN WILLIAMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   _____________________________


On appeal from the Circuit Court for Escambia County.
Edward P. Nickinson, Judge.

                          October 11, 2019


RAY, C.J.

     In this Anders * appeal, our independent review of the record
revealed that reasonable grounds existed to question Appellant’s
competency to stand trial, but the record does not reflect that the
trial court made an independent determination of Appellant’s
competency to proceed. After considering court-ordered briefing on
the issue, we reverse and remand for further proceedings.

     In December 2016, the State charged Appellant with a felony
drug crime. Later that month, defense counsel filed a “Suggestion
of Incompetency and Certificate of Good Faith” under Florida Rule
of Criminal Procedure 3.210(b)(1), alleging that Appellant’s

    *   Anders v. California, 386 U.S. 738 (1967).
appointed counsel in a separate case questioned Appellant’s
competency to stand trial. Defense counsel adopted the motion for
expert evaluation filed in the other case. Several months later, at
a May 2017 pretrial hearing, the court noted that the competency
issue had not been resolved. After looking into the matter, defense
counsel reported to the court that an expert had been appointed to
evaluate Appellant and that Appellant was found competent to
proceed. The case went to trial and the jury found Appellant guilty
as charged. The court reduced the conviction to the lesser-included
offense and sentenced Appellant accordingly. This timely appeal
followed.

     Once a court has reasonable grounds to question a defendant’s
competency, it must hold a competency hearing and make an
independent determination on whether the defendant is
competent to proceed. Sheheane v. State, 228 So. 3d 1178, 1180
(Fla. 1st DCA 2017). “Because an independent competency finding
is a due-process right that cannot be waived once a reason for a
competency hearing has surfaced, the trial court fundamentally
err[s] in failing to make such a finding.” Zern v. State, 191 So. 3d
962, 965 (Fla. 1st DCA 2016); see also Blaxton v. State, 188 So. 3d
48, 48–49 (Fla. 1st DCA 2016) (reversing for further proceedings
where, although it was undisputed that a competency evaluation
occurred, the report had not been filed in the trial court and the
record did not reflect that “the requirements of judicial review and
adjudication of competency were met below”).

     Although defense counsel below represented to the court that
Appellant had been declared competent to proceed based on an
expert’s evaluation, the record does not contain the expert’s report
and there is no indication that the court made the required
competency determination. As properly conceded by the State, this
Court must therefore reverse and remand for a retroactive
determination of Appellant’s competency, if possible. Zern, 191 So.
3d at 965. 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 to Appellant’s judgment
or sentence. Id. If a retroactive determination of competency
cannot be made, or if the court determines Appellant was not
competent at the time of trial, Appellant will be entitled to a new
trial if and when he is competent to proceed. Id.

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    REVERSED and REMANDED with directions.

B.L. THOMAS and WINOKUR, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.




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