          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           COURTNEY HINES,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D18-1522

                          [December 18, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Michael Mirman, Judge; L.T. Case No.
432015CF000212C.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and MaryEllen M.
Farrell, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The defendant appeals his conviction and sentence on charges of: 1)
two counts of high speed or wanton fleeing; 2) one count of the lesser
offense of reckless driving and wanton fleeing; and 3) one count of giving
false information to law enforcement during felony investigation or missing
person. He argues the trial court erred in failing to hold a competency
hearing prior to trial. We agree and reverse for further proceedings.

   The charges arose from a high-speed car chase and subsequent crash.
The State charged the defendant with giving a false name to law
enforcement, and fleeing or attempting to elude law enforcement, among
other charges.

   Prior to trial, defense counsel moved for a mental competency
examination. The trial court granted the motion and appointed an expert
to examine the defendant’s mental competency to proceed.           Two
subsequent stipulated motions for continuance were filed because the
defendant’s competency examinations were still pending.
   After further continuances, defense counsel moved to withdraw. The
court granted the motion and appointed another attorney to represent the
defendant. The newly appointed attorney represented defendant at trial,
but failed to address the unresolved competency issue before trial.

    The jury convicted the defendant of: 1) two counts of high speed or
wanton fleeing; 2) one count of the lesser offense of reckless driving and
wanton fleeing; and 3) one count of giving false information to law
enforcement during felony investigation or missing person. At sentencing,
the trial court reviewed the presentencing investigation report. It then
noted “whatever sentence to be imposed [is based] just on the evidence at
trial and the other information contained in the PSI that would be proper
as far as prior record and so forth.”

   The defendant now appeals. Among other issues, he argues the trial
court erred in failing to hold a competency hearing and enter an order on
his competency prior to trial. The State agrees and so do we. We therefore
remand the case, pursuant to Machin v. State, 267 So. 3d 1098, 1101 (Fla.
4th DCA 2019).

   There, we held that where a court grants a defendant’s motion for
appointment of an expert for a competency examination, but fails to hold
a hearing or enter a written finding on the movant’s competency to
proceed, the case must be temporarily remanded to the circuit court with
specific instructions. Id. It requires that we “direct that within sixty days,
the circuit court shall hold a hearing and issue an order determining
whether a nunc pro tunc competency evaluation is possible.”

    Depending on the outcome, the circuit court must follow one of the
following paths on remand:

      1) If the circuit court determines a nunc pro tunc competency
      determination is not possible, the court must vacate the
      defendant's conviction and sentence. The appeal in this Court
      will be dismissed as moot. In this circumstance, the circuit
      court must hold a competency hearing, Fowler, 255 So. 2d at
      515–16, with two possible outcomes:

         a. If the court finds the defendant is presently competent,
            a new trial or plea hearing must be held. Dougherty v.
            State, 149 So. 3d 672, 679 (Fla. 2014) (quoting Mason
            v. State, 489 So. 2d 734, 737 (Fla. 1986)).


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         b. If the court finds the defendant is presently
            incompetent, the court must proceed in accordance
            with Florida Rules of Criminal Procedure 3.212 to 3.215
            and other applicable law. See, e.g., Dougherty, 149 So.
            3d at 677.

      2) If the circuit court determines a nunc pro tunc competency
      determination is possible:

         a. And if the court finds the defendant was competent at
            time of judgment, it must (1) enter an order finding the
            defendant competent at the time of judgment; and (2)
            return the record to this Court. Fowler, 255 So. 2d at
            515. The appeal in this Court will then proceed.

         b. And if the court finds the defendant was incompetent at
            the time of judgment but is now competent, it must (1)
            vacate the defendant's conviction and sentence; and (2)
            hold a new trial or plea hearing. Fowler, 255 So. 2d at
            515–16. The appeal in this Court will be dismissed as
            moot.

         c. And if the court finds that the defendant was
            incompetent at the time of judgment and remains
            incompetent, the court must vacate the defendant's
            conviction and sentence. Fowler, 255 So. 2d at 516.
            The appeal in this Court will be dismissed as moot. The
            circuit court must then proceed in accordance with
            Florida Rules of Criminal Procedure 3.212 to 3.215 and
            other applicable law. See, e.g., Dougherty, 149 So. 3d
            at 677.

Id. at 1101–02.

   We therefore remand the case to the trial court. We find the remaining
issues were either unpreserved or lack merit.

   Remanded.

TAYLOR and DAMOORGIAN, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.

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