         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-4651
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KEITH MATTHEW MCCRAY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


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

                        January 22, 2019


WINSOR, J.

     Keith McCray appeals his convictions and sentences for
armed robbery, attempted armed robbery, and attempted felony
murder. We affirm McCray’s convictions but remand with
instructions to correct sentencing errors.

    Paula Trupp found a sectional couch on Craigslist for $1300.
She coordinated with the couch’s purported owner—Kayla
Brown—to go have a look. Trupp and her daughter went to Kayla’s,
where they discovered the couch was in worse shape than
advertised. Trupp left, telling Kayla she’d have to think about it.

    Trupp and her daughter then went to Burger King to mull
things over. While they were there, Kayla repeatedly called Trupp,
each time lowering the asking price. Kayla and Trupp finally
settled on $800.

      Later that afternoon, Trupp’s daughter went with her friend
Tipton to Kayla’s apartment. But they did not leave with the couch
as planned. Instead, they were robbed. Two men ran toward them,
yelling “get the f*** down.” One man pushed Trupp’s daughter
against a wall and demanded money. He also hit Tipton in the
head with a baseball bat, and the other man put a gun to Tipton’s
head and pulled the trigger. The gun malfunctioned and did not
fire. After a second attempt to shoot Tipton, and after the gun
again malfunctioned, the two men fled.

    Kayla was implicated in the robbery and agreed to a plea deal.
She testified that McCray coordinated with her to rob Trupp’s
daughter and Tipton when they returned for the couch. Kayla and
Tipton both testified that McCray was the man who tried to shoot
Tipton.

     McCray was convicted of all charges, and the jury found he
actually possessed a firearm. The court sentenced him to thirty-
five years’ imprisonment followed by fifteen years’ probation, and
it imposed various costs and fines. McCray now appeals, raising
three arguments. We address each in turn.

     McCray first argues that his conviction for attempted felony
murder cannot stand because his use of the gun extended
throughout the underlying felony (the robbery) and therefore no
intentional act separated the robbery from the attempted felony
murder. See § 782.051(1), Fla. Stat. (2016) (establishing that
attempted felony murder requires an act that could have caused
death and that is not an “essential element” of the underlying
felony). In other words, McCray argues, his act of putting a gun to
Tipton’s head and pulling the trigger was an “essential element” of
the robbery. We reject this argument.

     McCray relies primarily on Milton v. State, 161 So. 3d 1245
(Fla. 2014). In Milton, the defendant shot into a crowd and faced
several counts of attempted felony murder, each of which was
predicated on the underlying felony of attempted second-degree
murder. The State contended the act of shooting was not an
“essential element” of the attempted-murder charge and could
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therefore support the attempted felony murder charge. The
Florida Supreme Court held, though, that the “single act of
discharging a firearm” was an essential element of the underlying
attempted-murder charge, meaning it “did not satisfy the
intentional act element of attempted felony murder.” Id. at 1250
(marks omitted). In other words, but for Milton’s shooting, there
would have been no attempted murder, so his shooting was an
essential element. And that meant the State could not satisfy its
burden to show—as an element of attempted felony murder—“an
intentional act that is not an essential element of the felony.”
§ 782.051(1).

     But our case is unlike Milton. Here, even had McCray not
pulled the trigger, he was guilty of robbery. No shooting (or
attempted shooting) is necessary for the crime of robbery. All the
State must show is a taking through “use of force, violence, assault,
or putting in fear.” § 812.13(1), Fla. Stat. We cannot conclude,
then, that McCray’s attempt to shoot his victim in the head was an
“essential element” of the predicate offense of robbery. See
Newbhard v. State, 237 So. 3d 1075, 1080 (Fla. 3d DCA 2017) (“The
fact that [defendant] later shot [the victim], and by the use of such
force was able to successfully complete the robbery, did not serve
to convert that subsequent act of shooting into an essential
element of the underlying attempted robbery.”); Dallas v. State,
898 So. 2d 163, 165 (Fla. 4th DCA 2005) (“[W]e conclude that the
evidence of shooting the victim was not an element of the
attempted robbery. . . .”) (distinguishing Milton); see also Williams
v. State, 182 So. 3d 11, 15 (Fla. 3d DCA 2015) (“[T]he later act of
shooting the victim in the abdomen is an intentional act separate
and distinct from that of pointing the firearm at the victim’s head
and demanding that she hand over her bag. This allegation
satisfies the ‘not an essential element of the felony’ requirement of
the attempted felony murder statute quoted above.” (citation
omitted)).

     McCray’s second argument is related to his pre-trial
competency proceedings. After McCray’s arrest, his counsel moved
for a competency evaluation. A mental health expert subsequently
evaluated McCray and produced a report finding him competent to
proceed. During a preliminary hearing, McCray’s counsel
presented the report to the court and asked for a ruling. (“I think

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the State is prepared to stipulate to that report, so we need a
finding of competency as we move forward.”) The court, having
received the report and having heard the parties’ stipulations,
announced that it found McCray competent “based on the report
and the State’s stipulation.”

     McCray argues this was fundamental error because the trial
court never actually considered the report. The State confessed
error on this point, but we find no error. See Perry v. State, 808 So.
2d 268, 268 (Fla. 1st DCA 2002) (appellate courts are under no
obligation to accept confessions of error).

     As McCray correctly notes, a court cannot find competency
based on the parties’ stipulation alone. See Sheheane v. State, 228
So. 3d 1178, 1180 (Fla. 1st DCA 2017) (“The court must make an
independent finding of competence or incompetence—stipulations
of competence are not permitted.” (citing Zern v. State, 191 So. 3d
962, 964 (Fla. 1st DCA 2016))). But here the court said it was
relying on the expert report, not just a stipulation.

     Judge Wolf speculates that the court may not have truly read
the report. But we have no basis to suppose that the court did
anything but what it said it did: base its finding on the report. See
Merriell v. State, 169 So. 3d 1287, 1288 (Fla. 1st DCA 2015)
(rejecting argument that court did not make independent
competency determination when court “had the competency
evaluation . . . stated that it had reviewed the evaluation, and
specifically stated that it was finding Appellant competent to
proceed.”). We cannot determine from the transcript precisely how
long the court had the report, but we will not assume the court took
too little time to digest the relatively short and straightforward
report. *



    *  This is not like Rosier v. State, 43 Fla. L. Weekly D2042 (Fla.
1st DCA Sept. 5, 2018), reh’g en banc granted, 1D16-2327 (Jan. 8,
2019), in which this court found a competency hearing inadequate
and “perfunctory.” In that case, which was highly fact-specific, “the
evaluation report went unmentioned throughout the hearing, the
trial judge neither discussing it nor stating she’d reviewed it.” Id.
The order at issue included no indication “that the judge actually
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     Although the court did not err in finding competency, it did
neglect to put its oral ruling in writing. We therefore remand for
entry of a written order. See Nehring v. State, 225 So. 3d 916, 917
(Fla. 1st DCA 2017) (holding that when trial court makes oral
competency finding but neglects to enter written order, appellate
court is to remand for entry of written order consistent with oral
ruling).

     Finally, McCray argues that his sentence included court costs
for domestic violence, the rape crisis fund, and the crime stopper
trust fund, none of which was permissible. The State properly
confesses error on these points, and we reverse these costs.
Additionally, the court should correct McCray’s written order of
probation to match the court’s orally pronounced sentence, which
did not include probation or restitution for count two. McCray’s
sentence is otherwise affirmed.

     AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.

OSTERHAUS, J., concurs; WOLF, J., concurs in part and dissents in
part with opinion.

                 _____________________________

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

WOLF, J., concurring in part and dissenting in part.

     I concur in all respects with the majority opinion except for
one. I dissent from that portion of the opinion that suggests the
trial court made an independent finding of appellant’s competency.
The State correctly concedes error because the record does not
clearly reflect that the trial court did anything more than accept
the parties’ stipulation without conducting an independent

reviewed or relied on [the competency evaluation].” Id. Here, the
judge was clear: he ruled “based on the report.”

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evaluation of the psychiatric report regarding appellant’s
competency. The record states counsel handed the court the
evaluation “a moment” before the court found appellant competent
to proceed. I would, therefore, reverse and remand for the trial
court to conduct a nunc pro tunc competency determination. In
light of the fact that we are remanding for entry of a written order,
there is no reason that we should not require the trial judge to
clarify whether there was a proper independent evaluation.

     Prior to the trial, defense counsel filed a motion for
examination to determine competency. The court granted the
motion. A doctor conducted a psychological evaluation and
submitted a report concluding that appellant was competent.
Subsequently, the court conducted a brief pretrial hearing. At the
outset of the hearing, defense counsel had a conversation with the
clerk that appears to have been about the competency evaluation.
The clerk asked, “do you have another copy or do you want me to
give this to him?” Defense counsel stated, “Yeah, if you’d give him
a copy, unless he wants to read it on the screen. I’m not sure if it’s
made it through yet.” The clerk responded, “We haven’t.” Defense
counsel then explained to the court, “there was a suggestion of
incompetency. The examination’s been completed. The report is
what was just handed to you a moment ago. It determined he is
competent. I think the State is prepared to stipulate to that report,
so we need a finding of competency as we move forward.”
(Emphasis added). The court responded, “Based on the report and
the State’s stipulation, [appellant] is found to be competent. . . .” †



    †[PROSECUTOR]: Judge, Mr. McCray is out if [defense
    counsel is ready.

    THE COURT: Okay.

    THE CLERK: Do you want me to give this, do you have
    another copy or do you want me to give this to him?

    [DEFENSE COUNSEL]: Yeah, if you’d give him a copy,
    unless he wants to read it on the screen. I’m not sure if
    it’s made it through yet.

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     The record thus indicates that the trial court did not have a
copy of the report prior to the hearing. The report, which contained
7 pages of single-spaced text, was handed to the judge just “a
moment” before counsel requested a ruling. The court ruled
immediately thereafter. The judge’s response merely indicated
that he relied on the stipulation and the conclusion of the report
that the defendant was competent. This is insufficient because the
record must reflect the trial judge made an independent
determination of competency.

    In Dougherty v. State, 149 So. 3d 672 (Fla. 2014), the Florida
Supreme Court stated that due process concerns require a trial
court to make an independent determination of a defendant’s
competency notwithstanding a stipulation of the parties.
“Accepting a stipulation improperly absolves the trial court from
making an independent determination regarding a defendant’s
competency to stand trial.” Id. at 678.

    This court has stated, once a trial court has reasonable
grounds to question a defendant’s competency, the court must
conduct a hearing and “make its own independent finding of


    THE CLERK: We haven’t.

    [DEFENSE COUNSEL]: Okay.

    THE CLERK: I just need - -

    [DEFENSE COUNSEL]: Judge, there are a couple of
    housekeeping measures we need to take care of on Mr.
    McCray. The first is, there was a suggestion of
    incompetency. The examination’s been completed. The
    report is what was just handed to you a moment ago. It
    determined he is competent. I think the State is prepared
    to stipulate to that report, so we need a finding of
    competency as we move forward.

    THE COURT: Okay. Based on the report and the State’s
    stipulation, Mr. McCray is found to be competent to assist
    his attorney and proceed to trial, proceed through
    including the trial.

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competence or incompetence.” Zern v. State, 191 So. 3d 962, 964
(Fla. 1st DCA 2016) (emphasis added). While the court “may decide
the issue based on the experts’ reports without receiving any
testimony,” the trial court may not accept the ultimate conclusion
of these reports without reading them, because doing so would not
constitute an “independent” evaluation. Id. (emphasis added).

     In Zern, after two expert reports reached opposite conclusions
of whether the defendant was competent, the court ordered a third
evaluation that concluded the defendant was competent. 191 So.
3d at 963-64. During a hearing, “the court indicated that it had not
yet seen the third report,” but defense counsel advised it found the
defendant was competent and asked the court to declare the
defendant competent “based on the reports.” The court found him
competent. Id. 964. This court reversed, reasoning “[t]he record in
this case establishes that the trial court relied on the stipulation
of defense counsel and the preponderance of the experts’ ultimate
opinions to make its competency determination, without having
read all the evaluations. It does not show an independent finding.”
Id. at 965 (emphasis added).

     Other courts have reached the same conclusion where it was
unclear from the record whether the trial court read the
evaluations. In A.L.Y. v. State, 212 So. 3d 399, 400-01 (Fla. 4th
DCA 2017), the court ordered two mental health evaluations.
During a status hearing, a liaison for the Department of Juvenile
Justice informed the court that the juvenile had been “‘evaluated
by the doctors’” who concluded he was “‘competent on both cases.’”
Id. at 401. During the next status hearing, the court stated, “He’s
competent.” Id. The Fourth District reversed, finding “the court’s
statement cannot represent an independent factual finding that
the juvenile was competent to proceed where nothing in the record
indicates that the court reviewed the reports, instead of merely
relying on the DJJ’s in-court liaison’s statements that the juvenile
had been ‘evaluated by the doctors’ and was ‘competent on both
cases.’” Id. at 403. See also Hawks v. State, 226 So. 3d 892, 894
(Fla. 4th DCA 2017) (reversing a determination of competency
because “[t]he record does not indicate whether the court reviewed
the evaluations it ordered or made any findings based upon any
evaluations, and “[m]erely asking counsel whether the Defendant
[was] competent was not sufficient to satisfy Rule 3.210(b), which

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requires the court to hold a hearing to independently determine
the Defendant’s competency”) (emphasis added); Raithel v. State,
226 So. 3d 1028, 1031 (Fla. 4th DCA 2017) (reversing where trial
court expressly declined to review competency evaluation during
one hearing and “[t]he record fails to reveal that the competency
evaluation was reviewed by the trial court, that a hearing was held,
or an order determining competency was entered”) (emphasis
added); Hendrix v. State, 228 So. 3d 674, 676 (Fla. 1st DCA 2017)
(noting “reports of experts are ‘merely advisory to the [trial court],
which itself retains the responsibility of the decision’” (quoting
Hunter v. State, 660 So. 2d 244, 247 (Fla. 1995))).

    The record in this case does not indicate the trial court did
anything other than accept the parties’ stipulation and the report’s
conclusions. Reversal for a nunc pro tunc determination is
required.

                  _____________________________

Andy Thomas, Public Defender, and Danielle Jorden, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Brooke Moody, Attorney General, and Virginia Chester
Harris, Assistant Attorney General, Tallahassee, for Appellee.




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