         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-1394
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GEROME BERRY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

                        February 9, 2018


KELSEY, J.

     On appeal from a judgment and sentence for selling cocaine
within 1000 feet of an assisted living facility, Appellant argues
that the trial court erred by failing to hold a competency hearing
and adjudicate Appellant competent to stand trial. We agree with
this argument, reject Appellant’s other arguments without
further comment, and remand for the trial court to adjudicate
Appellant’s competence to stand trial.

     The record reflects that Appellant’s trial counsel filed a
suggestion of incompetence before trial, citing Appellant’s age,
distrust of counsel and of the legal process, and paranoia about
defense counsel’s colluding with the prosecutor. The trial court
promptly ordered an expert examination of Appellant.
Thereafter, defense counsel cited the same issues as grounds for a
motion to withdraw, which was granted; and new counsel took
over. The record then falls silent about Appellant’s competence.
There is no indication that the expert’s report was filed, that the
court conducted a hearing, or that the court adjudicated
Appellant competent. This failure to hold a hearing and
adjudicate competence is reversible error.

    “A criminal defendant has a procedural due process right to
the observance of procedures adequate to protect his or her right
not to be tried or convicted while incompetent to stand trial.”
Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016) (citing
Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014)). The test for
competence is whether a defendant can consult with his attorney
with a reasonable degree of rationality and whether he
understands the nature of the proceedings against him. Mairena
v. State, 6 So. 3d 80, 85 (Fla. 5th DCA 2009) (quoting Hill v.
State, 473 So. 2d 1253, 1257 (Fla. 1985)). Defendants’ attorneys
are in a unique position to comment on both of these factors,
which is why their expressed doubts as to their client’s
competency are given such great weight in determining whether
a hearing is required. See Avilesrosario v. State, 152 So. 3d 851,
854 (Fla. 4th DCA 2014) (citing Calloway v. State, 651 So. 2d 752,
754 (Fla. 1st DCA 1995)).

     The trial court must “observe the specific hearing
requirements set forth in [Florida Rules of Criminal Procedure
3.210–.212].” Dougherty, 149 So. 3d at 676. The rules provide that
a court shall set a competency hearing within twenty days if
“defense counsel, the state, or the trial court has reasonable
grounds to suggest that a defendant is not mentally competent to
proceed.” Mairena, 6 So. 3d at 85 (citing Fla. R. Crim. P.
3.210(b)); accord Zern, 191 So. 3d at 964 (citing Brooks v. State,
180 So. 3d 1094, 1096 (Fla. 1st DCA 2015)); Avilesrosario, 152 So.
3d at 854 (citing Fla. R. Crim. P. 3.210(b)). The trial court has
discretion in determining whether the circumstances, including
counsel’s representations, create the required “reasonable
grounds.” Rodgers v. State, 3 So. 3d 1127, 1132 (Fla. 2009) (citing
rule 3.210(b)). The trial court’s determination of reasonable
grounds is reviewed for abuse of discretion. Rodgers, 3 So. 3d at
1132.


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      In this case, the trial court appropriately ordered a
competency evaluation based on trial counsel’s fact-based, good
faith suggestion of incompetence. The trial court was required to
hold a competency hearing and enter a written order adjudicating
Appellant competent before he could be tried. It appears,
however, that the change of counsel may have caused the issue to
fall between the cracks, resulting in reversible error.

     This error does not necessarily require a new trial, however.
This Court has previously held that “[t]he trial court may make a
retroactive determination of competency with no change in
Appellant’s judgment or sentence, if the evidence that existed
prior to the hearing on Appellant’s charges supports a finding
that he was competent at that time.” Cotton v. State, 177 So. 3d
666, 668–69 (Fla. 1st DCA 2015). “If the trial court cannot make
a retroactive determination, it must properly adjudicate
Appellant’s present competency and, if the court finds Appellant
competent to proceed,” conduct a new trial. Id. at 669.

    REVERSED and REMANDED.

WOLF and OSTERHAUS, JJ., 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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Andy Thomas, Public Defender, and Courtenay H. Miller,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate,
Assistant Attorney General, Tallahassee, for Appellee.




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