         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-3174
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ANTONIO ATWATER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  ___________________________

On appeal from the Circuit Court for Duval County.
Angela Cox, Judge.

                        January 2, 2018

                 On Motion for Written Opinion

PER CURIAM.

     Antonio Atwater was convicted of first-degree murder and two
counts of armed robbery. In his single issue on appeal, Atwater
argued that the trial court reversibly erred by failing to hold a
competency hearing after appointing a confidential expert to
evaluate Atwater for the purpose of aiding defense counsel in
determining Atwater’s competency to proceed. We previously
affirmed Atwater’s judgments and sentences without an opinion.
We now grant his motion for written opinion, withdraw our prior
decision, and substitute the following opinion in its place.

    Prior to trial, defense counsel moved, pursuant to Rule
3.216(a), Florida Rules of Criminal Procedure, to have a
“confidential expert” appointed “to examine [Atwater] in order to
assist counsel in determination of [Atwater’s] competence to
proceed.” The court promptly entered an order appointing an
expert as requested, and the order expressly provided that under
Rule 3.216(a), the expert was to report only to defense counsel and
that all matters related to the evaluation fell within the lawyer-
client privilege. The content and context of the motion and related
oral representations by defense counsel to the court demonstrate
that the request for a confidential expert evaluation was made as
a precautionary measure and was insufficient to trigger a
mandatory competency hearing under Rule 3.210(b), Florida Rules
of Criminal Procedure. Without more, the court was not required
to take further action relating to Atwater’s competency before
proceeding with trial and sentencing. See Crosby v. State, 175 So.
3d 382, 383 (Fla. 5th DCA 2015) (explaining a trial court is not
required to conduct a Florida Rule of Criminal Procedure 3.210
competency hearing after appointing an expert at defense
counsel’s request made pursuant to Rule 3.216, “unless the
defendant’s attorney decides to actually raise the defense of
insanity or assert incompetence to proceed.”); see also State v.
Guyton, 445 So. 2d 644, 644-45 (Fla. 4th DCA 1984) (discussing
rules 3.210 and 3.216).

    AFFIRMED.

RAY and OSTERHAUS, JJ., and PATTERSON, CHRISTOPHER N.,
ASSOCIATE JUDGE, 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.
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Rick A. Sichta, Susanne K. Sichta, and Joseph Hamrick of The
Sichta Firm, LLC., Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.


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