       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      BRYAN PATRICK AUGUSTIN,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D17-685

                              [June 13, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Marni A. Bryson, Judge; L.T. Case No. 50-2014-CF-
0011655-AXXX-MB.

   Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special
Assistant Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

PER CURIAM.

   Prior to trial, defense counsel moved to appoint experts to evaluate the
defendant for competency to proceed, indicating that the defendant
appeared to suffer from mental illness. The motion expressed counsel’s
concerns regarding the defendant’s ability to disclose facts pertinent to the
proceedings and his ability to testify. The circuit court subsequently
reassigned the case to the mental health specialty division, noting that the
defendant’s competency to proceed was an “ongoing issue.”
   After the case was transferred, the presiding judge appointed two
experts to examine the defendant. It appears that the mental health
evaluations were completed as ordered. Thereafter, the presiding judge
entered an order reassigning the case back to the criminal division “upon
agreement of the parties,” noting, “Defense Counsel notified all parties that
they are formally moving to withdraw their motion to evaluate the
Defendant for competency to proceed.” There is no written motion to
withdraw in the record. Also, it does not appear that the trial court ever
held a competency hearing or issued a written order regarding the
defendant’s competency to proceed.
    “A trial court has the duty to make an independent determination of a
criminal defendant’s competency to proceed.” Charles v. State, 223 So. 3d
318, 329 (Fla. 4th DCA 2017). “A defendant cannot stipulate to the
ultimate issue of competency, because ‘[a]ccepting a stipulation
improperly absolves the trial court from making an independent
determination regarding a defendant’s competency to stand trial.’” Id.
(quoting Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014)). “Although
the trial court, when the parties agree, may decide the issue of competency
on the basis of written reports alone, it cannot dispense with its duty to
make an independent determination about a defendant’s competency, and
must enter a written order if the defendant is found competent to proceed.”
Dougherty, 149 So. 3d at 679; see also Fla. R. Crim. P. 3.212(b) (“The court
shall first consider the issue of the defendant’s competence to proceed. If
the court finds the defendant competent to proceed, the court shall enter
its order so finding and shall proceed.”).
   From this record, we cannot tell whether a competency hearing was
ever held, whether defense counsel stipulated to competency, and whether
the trial court found the defendant competent based on the reports. What
is clear is that there is no written order regarding the defendant’s
competency in the record.

    Once the trial court ordered the mental health evaluations, and those
evaluations were completed, the court was required to move forward with
the competency hearing. See Dortch v. State, ––– So.3d ––––, 2018 WL
1617082, at *1 (Fla. 4th DCA Apr. 4, 2018) (“Once a trial court has
reasonable grounds to believe the defendant is incompetent and orders an
examination, it must hold a hearing, and it must enter a written order on
the issue. Failure to do so is fundamental error and requires reversal.”)
(internal citation omitted).    We therefore reverse and remand with
instructions for the trial court to determine the defendant’s competency
nunc pro tunc, if possible, and if not, the judgment and sentence should
be vacated and the case set for trial. See Dougherty, 149 So. 3d at 679.

   We briefly discuss two remaining issues. The trial court erred in giving
the heat of passion instruction where there was no evidence to support it.
See, e.g., Douglas v. State, 652 So. 2d 887 (Fla. 4th DCA 1995) (marital
squabbles do not constitute reasonable provocation required for the heat
of passion defense); Daley v. State, 957 So. 2d 17, 18 (Fla. 4th DCA 2007)
(an argument alone will not support the heat of passion defense). We find
the error to be harmless. The defendant was convicted of the lesser
included offense of second degree murder, so we are hard-pressed to see

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how the defendant was prejudiced by the inclusion of the heat of passion
instruction. The state argued that this was a case of premeditated murder
and told the jury “this is not a heat of passion case.” Defense counsel
argued that the stabbing was an “impulsive act done by a teenager in a
heated moment with no real motive,” and “not an act done upon reflection.”
If the giving of the instruction muddied the waters, it was to the
defendant’s benefit. However, if there is a retrial in this case, the
instruction should not be given.

   Finally, the defendant’s equivocal conduct was insufficient to invoke
his right to remain silent.

   Reversed and remanded.

GERBER, C.J., GROSS and CONNER, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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