       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           AUGUSTUS ROSE,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-1723

                             [June 6, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Dan L. Vaughn, Judge; L.T. Case No.
472013CF000579A.

   Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Augustus Rose appeals the denial of his motion to withdraw
his plea and vacate his sentence, arguing that the trial court
fundamentally erred in accepting his plea of nolo contendere without first
holding a hearing to determine his competency. We agree and reverse and
remand for further proceedings consistent with this opinion.

                              Background

   Appellant was charged with burglary of a dwelling with assault or
battery while armed, kidnapping with a weapon or firearm, abuse of a
disabled adult, and possession of a firearm by a convicted felon. His
defense counsel filed a motion to examine Appellant “on the issue of
competence to proceed,” with an assertion that the motion was made “in
good faith and on reasonable ground to believe that [Appellant] is
incompetent to proceed.” The trial court granted the motion.

   Nearly one year later, Appellant entered a “no contest” plea to all
charges. On his Felony Plea Form, it was noted that Appellant was
prescribed medication for “mental health.” His counsel further informed
the court that Appellant had been treated in the past for mental illness
and, after Appellant’s arrest, a psychological examination had been
performed. However, there was no discussion with respect to the details
of this evaluation at either the change of plea or sentencing hearings.
When questioned as to whether Appellant had been “deemed competent
and not insane at the time of the offense,” Appellant responded “[t]hat’s
what they said.”

   At the sentencing hearing, more details regarding Appellant’s mental
health history were presented to the trial court. This was the first
opportunity for the judge to review the mental competency examination
report. In arguing for a bottom of the guidelines sentence, defense counsel
made note that Appellant had been “Baker-acted”; 1 received in-patient
mental health treatment; continues to be prescribed medication; and,
continues to have mental health issues. The trial court made no further
inquiries regarding Appellant’s present mental fitness at either the change
of plea or sentencing hearing. Appellant was sentenced to forty years in
prison.

    Subsequently, Appellant filed a motion pursuant to Florida Rule of
Criminal Procedure 3.170(f) to withdraw his plea. In asserting that
Appellant’s agreement to enter the no contest plea was involuntary, the
motion notes the trial court had been informed of Appellant’s “mental
health issues” and prior “mental health commitment.” It further alleged
that, at the time Appellant entered the plea agreement, he was taking four
different medications, each of which “have either a sedative, neurological
or psychological effect on a person.” A hearing was then held on
Appellant’s motion. There, the court denied the motion and rejected
Appellant’s claims that he was impaired at the time he entered his plea
(“There is no showing that any of this medication he claims he was taking
affected his ability to understand the proceedings.”). Appellant’s appeal
follows, with the allegation that the trial court reversibly erred when it did
not conduct a competency hearing and enter a written order regarding
competency before accepting Appellant’s change of plea.

                                   Analysis

   “The procedure for determining a defendant’s competency is governed
by Florida Rules of Criminal Procedure 3.210 through 3.215. We review

1The “Baker-acted” reference is to section 394.467, Florida Statutes (2013) (“the
Baker Act”).

                                       2
the court’s judgment and its compliance with these rules de novo.” Hawks
v. State, 226 So. 3d 892, 893 (Fla. 4th DCA 2017).

       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.
       See Fla. R. Crim. P. 3.210(b), 3.212(b). Failure to do so is
       fundamental error and requires reversal.

Dortch v. State, Nos. 4D16-2815, 4D16-2816, at *1 (Fla. 4th DCA Apr. 4,
2018) (emphasis added) (footnote omitted).

    In Hawks, we set forth the “three steps” a trial court must take following
“an initial determination that it has reasonable grounds to question the
competency of a defendant.” Hawks, 226 So. 3d at 894. The trial court
followed none of these steps: it did not schedule a competency hearing; it
did not hold a competency hearing; and it did not issue a written order
making findings as to the defendant’s competence. 2 Its failure to do so
was fundamental error, regardless of whether there was a previous
declaration or adjudication of incompetence or whether a motion to
withdraw plea was filed and considered by the trial court. See Dortch,
4D16-2815, at *2. Thus, to the extent that Appellant failed to properly
preserve the competency issue, either at the change of plea hearing, the
sentencing hearing, or the motion to withdraw plea hearing, the purported
failures are not fatal in our review of this issue.

   The State appears to argue on appeal that the trial court’s failure to
hold the competency hearing mandated by Rule 3.210(b) is excusable
because (1) Appellant “specifically agreed to his own competence,” and (2)
Appellant waived a competency hearing. As noted in the Background
section of this opinion, Appellant did not “specifically agree[]”; rather, he
merely acknowledged that the expert’s report said he was competent.
Moreover, it was Appellant, through defense counsel, who initiated the
Rule 3.210(b) process when he moved for a mental competence
examination and declared that the motion was made “in good faith and on
reasonable ground to believe that [Appellant] is incompetent to proceed.”

   As to the purported waiver, a defendant may not waive his or her right
to a competency hearing. Williams v. State, 169 So. 3d 221, 223 (Fla. 2d
DCA 2015). “[E]ven an express waiver of a hearing does not comport with
the statute.” Deferrell v. State, 199 So. 3d 1056, 1061 (Fla. 4th DCA 2016)

2In its Answer Brief, the State concedes the trial court erred in failing to prepare
a written order regarding competency.

                                         3
(remanding for a competency hearing notwithstanding three mental
competency examinations opining that the defendant was competent to
proceed.).

    In Presley v. State, 199 So. 3d 1014 (Fla. 4th DCA 2016), the trial court
accepted defendant’s no contest plea. Id. at 1016. As in the instant case,
though at a different stage in the proceedings, the court was put on notice
of the defendant’s mental health history and treatment and had ordered
an evaluation. Id. In both cases, the trial court failed to schedule or hold
a competency hearing prior to conducting the next material stage of the
proceedings. Id. Both the defendant in Presley and Appellant in the
instant case filed a motion to withdraw plea on the basis that the
defendant was incompetent at the time of entering the plea, and in both
cases that motion was denied. Id. In both cases, “[t]he trial court did not
make a finding of competency following an evidentiary hearing or the
parties’ agreement for the court to decide the competency issue on the
basis of a written report.” Id. at 1019.

    We reversed the denial of the defendant’s motions to withdraw his plea
in Presley. We must do so in this case as well. “Under Rule 3.210, ‘once
a trial court has reasonable grounds to believe that a criminal defendant
is not competent to proceed, it has no choice but to conduct a competency
hearing.’” Hawks, 226 So. 3d at 893 (quoting Monte v. State, 51 So. 3d
1196, 1202 (Fla. 4th DCA 2011)). Here, there were “reasonable grounds,”
but there was no competency hearing before the change of plea, and there
was no written order making findings as to Appellant’s competence.
Accordingly, we reverse and remand.

   On remand, the trial court must first discern whether it can determine
Appellant’s competence nunc pro tunc. Dortch, 4D16-2815, at *2; Hawks,
226 So. 3d at 894-95. “If the court finds Appellant was competent at the
time of the plea hearing, it must enter a nunc pro tunc order, and the
judgment and sentence need not change.” Sheheane v. State, 228 So. 3d
1178, 1181 (Fla. 1st DCA 2017). If the trial court cannot make a
retroactive determination or it finds Appellant was incompetent at the time
of the plea hearing, it must grant Appellant’s motion to withdraw plea,
vacate Appellant’s judgment and sentence, and determine or re-determine
Appellant’s competence to proceed.

                                Conclusion

   There were reasonable grounds to question the competency of
Appellant, both prior to the change of plea hearing as well as after this
hearing. The trial court’s failure to schedule and hold a competency

                                     4
hearing and issue a competency order constitutes fundamental error. This
requires us to reverse the trial court’s order denying Appellant’s motion to
withdraw plea and to remand for further proceedings.

   Reversed and Remanded for further proceedings consistent with this
opinion.

LEVINE and CONNER, JJ., concur.


                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     5
