       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          ROBERT R. RAMSAY,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D18-34

                           [November 14, 2018]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Steven Levin and Lawrence M. Mirman, Judges; L.T. Case
No. 432015CF001139A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

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

GERBER, C.J.

    The defendant argues that the trial court, after ordering a competency
evaluation under Florida Rule of Criminal Procedure 3.210(b), erred in
failing to conduct a competency hearing before a jury trial, resulting in the
defendant’s conviction and sentence on multiple charges. The defendant
seeks a reversal of the jury verdict and sentence, and remand for a
competency hearing before a new trial can occur.

   The state concedes that the trial court erred in failing to conduct a
competency hearing before the trial. See Charles v. State, 223 So. 3d 318,
328 (Fla. 4th DCA 2017) (“Once the trial court appoints experts to examine
the defendant’s competency, the trial court may not proceed against the
defendant without holding a competency hearing and ruling on the
defendant’s competency.”).

   However, the state argues that the proper remedy at this time is not a
reversal of the jury verdict and sentence, but remand to allow the trial
court to conduct a nunc pro tunc competency determination pursuant to
Florida Rule of Criminal Procedure 3.212, if possible.

   We agree with the state’s requested remedy. We base our decision on
controlling case law. As our supreme court held in Dougherty v. State, 149
So. 3d 672 (Fla. 2014):

      [A] nunc pro tunc competency evaluation could be done where
      there are a sufficient number of expert and lay witnesses who
      have examined or observed the defendant contemporaneous
      with trial available to offer pertinent evidence at a
      retrospective hearing. . . . [S]hould the trial court find, for
      whatever reason, that an evaluation of [the defendant’s]
      competency at the time of the original trial cannot be
      conducted in such a manner as to assure [the defendant] due
      process of law, the court must so rule and grant a new trial.
      Thus, the remedy for a trial court’s failure to follow the
      procedures discussed above depends on the circumstances of
      each case.

Id. at 679 (internal citations and quotation marks omitted); accord Silver
v. State, 193 So. 3d 991, 993-94 (Fla. 4th DCA 2016) (same).

   We have not based our decision on non-record information which the
state included in its answer brief regarding an alleged competency
evaluation completed before trial. As the defendant argues in his reply
brief, the state’s reliance on non-record information is wholly improper.
Poteat v. Guardianship of Poteat, 771 So. 2d 569, 573 (Fla. 4th DCA 2000).

   Based on the foregoing, we remand to allow the trial court to conduct a
nunc pro tunc competency determination, if possible. Should the trial
court find, for whatever reason, that an evaluation of the defendant’s
competency at the time of the trial cannot be conducted in such a manner
as to assure the defendant due process of law, the trial court must so rule
and grant a new trial.

   Remanded for proceedings consistent with this opinion.

WARNER and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.


                                    2
