         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED


LOUIS BURNEY, JR.,

             Appellant,

 v.                                                  Case No. 5D17-1619

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed May 18, 2018

Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.

James S. Purdy, Public Defender, and
Andrew Mich, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee,   and     Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee.


PER CURIAM.

      Louis Burney, Jr. (“Burney”) appeals his judgment and sentence for kidnapping

with a weapon and aggravated battery with a deadly weapon or causing great bodily

harm. Burney does not contest the merits of his case but contends that the trial court
erred in finding him competent to proceed to trial based upon the parties’ stipulation rather

than making an independent determination. We agree.

         The courts have consistently held that it is error for a trial court to base its decision

regarding a defendant’s competency upon a stipulation rather than making an

independent determination. For example, in Dougherty v. State, 149 So. 3d 672 (Fla.

2014), the Florida Supreme Court explained:

                [N]othing in our precedent or the State’s argument persuades
                us that a defendant can stipulate to the ultimate issue of
                competency, even where the written reports reach the same
                conclusion. Even in a situation where all the experts opine
                that a defendant is competent, the trial court could
                presumably disagree based on other evidence such as the
                defendant’s courtroom behavior or attorney representations.
                Further, the language of rule 3.212(c)(7) and rule 3.212(b)
                discussed above does not allow parties to stipulate to the
                issue of competency. See Jones, 125 So. 3d at 984 (citing
                Macaluso, 12 So. 3d at 915). . . . Thus, based on our
                precedent and the procedural rules for competency
                determinations, a defendant cannot stipulate that he is
                competent, particularly where he has been previously
                adjudicated incompetent during the same criminal
                proceedings. Further, if a trial court finds that a defendant is
                competent to proceed, it must enter a written order so finding.

Id. at 678 (footnote omitted). In Rumph v. State, this court cited Dougherty in holding that

“[t]he parties may stipulate to deciding competency based on the written expert reports

rather than live expert testimony, but the defendant and the other parties may not stipulate

to competency itself . . . as the trial court must make an independent determination on

the issue.” 217 So. 3d 1092, 1095 (Fla. 5th DCA 2017) (citing Dougherty, 149 So. 3d at

678).1



         1
        The courts in other decisions have reached the same conclusion and remanded
cases in which the trial court agreed to a stipulation of competency rather than making an
independent determination. See Carrion v. State, 235 So. 3d 1051, 1053 (Fla. 2d DCA


                                                 2
       In instances where a competency finding is erroneously based on the stipulation

of the parties, the courts generally remand the case to the trial court to make a retroactive

determination of competency. This procedure was explained by the Fourth District Court

in Baker v. State, 221 So. 3d 637 (Fla. 4th DCA 2017):

              Thus, on remand, if the court can make a nunc pro tunc finding
              as to appellant’s competency based upon the existence of
              evaluations performed contemporaneous with trial and
              without relying solely on a cold record, and can do so in a
              manner which abides by due process guarantees, then it
              should do so and enter a corresponding written order.

Id. at 641; accord Holland v. State, 185 So. 3d 636, 637 (Fla. 2d DCA 2016) (“Accordingly,

we remand the case to the trial court for entry of a nunc pro tunc order finding Holland

competent to stand trial.”). In making this determination, “[t]he parties may agree to the

use of the previous evaluators’ written reports, which shall be filed with the court and

placed in the record.” Sheheane, 228 So. 3d at 1181. If the trial court determines that a

defendant was competent at the time of the trial, it must enter a nunc pro tunc written



2018) (“The trial court erred in failing to make an independent competency finding and in
failing to enter a written order of competency.”); Moulton v. State, 230 So. 3d 934, 937
(Fla. 2d DCA 2017) (“[W]hile the trial court may rely on the written reports if the parties
agree to that procedure, the court may not rely solely on the parties’ stipulation to
competency, and the record must be clear that the court has made an independent
determination of the defendant’s competency.”); Hanna v. State, 232 So. 3d 1026, 1027
(Fla. 4th DCA 2017) (“The trial court’s reliance on this stipulation was erroneous.”);
Sheheane v. State, 228 So. 3d 1178, 1181 (Fla. 1st DCA 2017) (“To find, as the trial court
did here, there were reasonable grounds to believe Appellant may be incompetent, and
then allow that same potentially incompetent individual to waive his right to determine
competency, does not comport with due process.”); Zern v. State, 191 So. 3d 962, 965
(Fla. 1st DCA 2016) (“The 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.”); Williams v. State, 169 So. 3d 221, 223 (Fla. 2d DCA
2015) (“Because the trial court erroneously allowed Williams to stipulate to his
competency, we must reverse.”).



                                             3
         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED


LOUIS BURNEY, JR.,

             Appellant,

 v.                                                  Case No. 5D17-1619

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed May 18, 2018

Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.

James S. Purdy, Public Defender, and
Andrew Mich, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee,   and     Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee.


PER CURIAM.

      Louis Burney, Jr. (“Burney”) appeals his judgment and sentence for kidnapping

with a weapon and aggravated battery with a deadly weapon or causing great bodily

harm. Burney does not contest the merits of his case but contends that the trial court
