           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                           No. 1D18-43
                  _____________________________

B. E., a child,

     Appellant,

     v.

STATE OF FLORIDA,

     Appellee.
                  _____________________________


On appeal from the Circuit Court for Escambia County.
Coleman Lee Robinson, Judge.

                        September 25, 2018


PER CURIAM.

     B.E., a child, challenges her adjudication of delinquency for
battery on a public employee, simple battery, misdemeanor
criminal mischief, and burglary of an occupied dwelling. She
contends the trial court erred in denying her motion for judgment
of acquittal, and in failing to hold a competency hearing after it
appointed an expert to conduct an evaluation. We affirm the first
issue without further discussion. However, we agree with B.E. on
the second issue, and reverse and remand.

    Shortly after the State filed its petition for delinquency, B.E.’s
counsel filed a notice of incompetency and moved for an updated
expert evaluation on the basis the child may be incompetent to
stand trial. An expert had previously conducted a competency
evaluation and found B.E. to be competent. The trial court granted
the motion, appointing the same expert to conduct an updated
evaluation. Notwithstanding this appointment, no further
proceedings regarding B.E.’s competency were conducted, and no
further orders were entered addressing the issue.

     Although B.E. did not raise the lack of a competency hearing
below, she has a due process right to an independent competency
finding once her competency is questioned. Sheheane v. State, 228
So. 3d 1178, 1179 (Fla. 1st DCA 2017). We review this issue de
novo. See A.L.Y. v. State, 212 So. 3d 399, 402 (Fla. 4th DCA 2017)
(“Whether the circuit court fundamentally erred in failing to hold
a competency hearing presents a pure question of law subject to de
novo review.”).

     Here, because the trial court granted counsel’s motion and
appointed an expert to conduct an updated evaluation, it had
reasonable grounds to question B.E.’s competency. See Reynolds
v. State, 177 So. 3d 296, 298 (Fla. 1st DCA 2015). Once the trial
court had reasonable grounds to question competency, it was
required to conduct a hearing on the issue and enter an order
independently finding her competent to proceed before conducting
the adjudicatory hearing. See § 985.19(1)(b), Fla. Stat.; Fla. R. Juv.
P. 8.095(a)(2); see also Trueblood v. State, 193 So. 3d 1060, 1061-
62 (Fla. 1st DCA 2016). However, the trial court failed to do either.

     Therefore, we reverse and remand for the trial court to decide
whether a nunc pro tunc competency determination can be
conducted which comports with due process. If it is possible, the
trial court shall conduct a hearing and enter a written order
accordingly. See Pearce v. State, 43 Fla. L. Weekly D1489 (Fla. 1st
DCA June 28, 2018) (permitting a nunc pro tunc competency
evaluation where a sufficient number of expert and lay witnesses
who have examined or observed the defendant at or near time of
trial are available to offer pertinent evidence). If a retroactive
determination is not possible or the trial court determines B.E.
was not competent at the time of the hearing, the trial court must
conduct a new adjudicatory hearing once it determines she is
competent to proceed.




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    REVERSED and REMANDED for further proceedings.

ROWE, KELSEY, and M.K. THOMAS, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Jasmine Russell, Assistant
Public Defender, Tallahassee, for Appellant.

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




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