                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

CARLOS D. COTTON,                     NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-4936

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed October 12, 2015.

An appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

Nancy A. Daniels, Public Defender, and Colleen Dierdre Mullen, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.



KELSEY, J.

      Appellant’s judgment and sentence for violation of probation are at issue in

this appeal pursuant to Anders v. California, 386 U.S. 738 (1967). We reject without

further comment the Fourth Amendment claim that Appellant asserted in his pro se

brief, and would affirm because we find no other meritorious issues, but we must

remand for further proceedings to establish Appellant’s competency.
      Upon the Court’s independent review of the record as required by Anders, we

determined that the trial court ordered Appellant to undergo a competency

evaluation and designated a doctor to perform the evaluation. However, the record

does not contain the request for the evaluation, the doctor’s report, or any evidence

that the trial court conducted a competency hearing or adjudicated Appellant

competent before proceeding with the hearing and sentencing on the violation of

probation charges.

      In light of the lack of record evidence establishing Appellant’s competency,

we issued an order pursuant to State v. Causey, 503 So. 2d 321 (Fla. 1987), requiring

the Assistant Public Defender to brief the competency issue and file a supplemental

record containing any documents pertinent to that issue. The Assistant Public

Defender responded that the record was devoid of a competency determination. The

State replied that, although defense counsel requested a competency evaluation and

the evaluation was performed, apparently resulting in a conclusion that Appellant

was competent to proceed, the evaluation documents were not filed in this case. They

were filed only in another case involving Appellant. There is no indication, however,

that the trial court conducted a competency hearing or ruled on Appellant’s

competency.

      It is a due process violation to proceed against an incompetent criminal

defendant. Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014); see also Ross v.

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State, 155 So. 3d 1259, 1259-60 (Fla. 1st DCA 2015) (“[T]he trial court first must

hold a hearing to determine whether the defendant’s competency has been restored,

review evidence from experts during the hearing, make an independent

determination that the defendant’s competency has been restored, and enter a written

order to that effect.”). If the trial court does not have sufficient grounds to believe

that the defendant may lack competency, there is no obligation to hold a competency

hearing. Monte v. State, 51 So. 3d 1196, 1202 (Fla. 4th DCA 2011). However, once

a trial court has reasonable grounds to question competency, the court “has no choice

but to conduct a competency hearing.” Id. (citing Mairena v. State, 6 So. 3d 80, 85

(Fla. 5th DCA 2009); Carrion v. State, 859 So. 2d 563, 565 (Fla. 5th DCA

2003)); see Fla. R. Crim. P. 3.210(b), 3.212; Ross, 155 So. 3d at 1260; Maxwell v.

State, 974 So. 2d at 505, 510-11 (Fla. 5th DCA 2008); Cochran v. State, 925 So. 2d

370, 372-73 (Fla. 5th DCA 2006); see also Dougherty, 149 So. 3d at 677 (“‘[T]he

framers of the rule . . . obviously did not regard lightly the necessity for a hearing’

by their use of the terms ‘shall’ and ‘immediately.’”) (quoting Fowler v. State, 255

So. 2d 513, 515 (Fla. 1971)).

      The State requests that we “supplement” the record in this case with the

request for a competency evaluation and the report of the evaluation that were filed

in another case involving Appellant. We decline this request because we are not at

liberty to add to this record documents that were never filed with the lower tribunal

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in this case and that there is no evidence the trial court reviewed. See Thornber v.

City of Fort Walton Beach, 534 So. 2d 754, 755 (Fla. 1st DCA 1988). The documents

should have been filed directly in this record, or placed in this record pursuant to a

request for judicial notice. The ability to supplement the record “is not intended to

correct inadequacies in the record which result from a failure of a party to make a

record below.” Id. Even if those two documents were in this record, however, we

could not affirm this appeal until the record also reflected that the trial court

conducted an appropriate competency hearing and adjudicated Appellant competent

to proceed.

      On remand, the parties shall promptly file with the lower tribunal, in the

record of this case, all documents pertinent to the question of Appellant’s

competency. If in fact the trial court previously considered those documents,

conducted a competency hearing, and orally adjudicated Appellant competent, the

trial court may enter an order of competency effective nunc pro tunc to the date of

the previous oral adjudication. See Hunter v. State, 40 Fla. L. Weekly D1109, 2015

WL 2186347, at *2 (Fla. 1st DCA May 12, 2015) (“[T]he trial court in this case did

schedule and convene a competency hearing, and, on the record, did consider the

two reports from the forensic mental health specialists . . . .”); Hampton v. State, 988

So. 2d 103, 106 (Fla. 2d DCA 2008) (“Where, as here, a court has orally found a

defendant competent but erroneously failed to enter the required written order, we

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have affirmed with directions to enter the order nunc pro tunc.”); Martinez v. State,

851 So. 2d 832, 834-35 (Fla. 1st DCA 2003) (remanding for entry of competency

order nunc pro tunc).

      If, on the other hand, the trial court did not previously conduct a competency

hearing, the court must do so before adjudicating Appellant’s competency. The

transcript of such hearing and order adjudicating competency must be filed of record

in this case to facilitate further appellate review, if any. The 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. Dougherty, 149 So. 3d at 678-

79 (discussing general rule that competency cannot be determined retroactively, but

refusing to make bright-line rule because “a retroactive determination of competency

is possible” even though “inherently difficult”). But see Maxwell, 974 So. 2d at 510-

11 (“Because a hearing to determine whether a criminal defendant was competent at

the time of trial cannot be held retroactively . . . we must reverse [the appellant’s]

sentences and remand for a new sentencing hearing.”). 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

hearing on the violation of probation charges. The remedy is dependent “on the




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circumstances of each case.” Dougherty, 149 So. 3d at 678-79. We leave that

decision to the trial court.

       REVERSED and REMANDED with instructions.

THOMAS and MARSTILLER, JJ., CONCUR.




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