       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            CHASMIN JONES,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-1805

                           [November 22, 2017]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No.
312016CF000424A.

  Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

                      ON CONFESSION OF ERROR

DAMOORGIAN, J.

    Appellant, Chasmin Jones, was arrested and charged with two counts
of sale, delivery, or possession with intent to sell of hydromorphone within
1000 feet of a school and two counts of possession of hydromorphone.
Thereafter, Appellant’s counsel filed a pretrial motion for a hearing and
appointment of an expert to evaluate Appellant’s competency. The court
granted Appellant’s motion, appointed an expert to evaluate Appellant,
and set the matter for hearing. However, the record does not reflect that
the scheduled competency hearing ever occurred. The case proceeded to
trial wherein Appellant was adjudicated guilty on all charges. On appeal,
Appellant argues that the court fundamentally erred when it ordered, but
never conducted, a competency evaluation. The State properly concedes
error.

   “The issue of ‘[w]hether the circuit court fundamentally erred in failing
to hold a competency hearing presents a pure question of law subject to
de novo review.’” Baker v. State, 221 So. 3d 637, 639 (Fla. 4th DCA 2017)
(quoting A.L.Y. v. State, 212 So. 3d 399, 402 (Fla. 4th DCA 2017)).

      Florida Rule of Criminal Procedure 3.210(b) provides that:

      (b) Motion for Examination. If, at any material stage of a
      criminal proceeding, the court of its own motion, or on motion
      of counsel for the defendant or for the state, has reasonable
      ground to believe that the defendant is not mentally competent
      to proceed, the court shall immediately enter its order setting
      a time for a hearing to determine the defendant's mental
      condition, which shall be held no later than 20 days after the
      date of the filing of the motion, and may order the defendant
      to be examined by no more than 3 experts, as needed, prior to
      the date of the hearing. Attorneys for the state and the
      defendant may be present at any examination ordered by the
      court.

(emphases added).

   Based on the plain language of Rule 3.210(b), once a court has
reasonable grounds to question the defendant’s competency, it must order
a competency hearing. Baker, 221 So. 3d at 640−41. Once ordered, the
court must actually conduct the competency hearing and issue an order
on the defendant’s competence. Id.; see also Deferrell v. State, 199 So. 3d
1056, 1061 (Fla. 4th DCA 2016) (neither expert reports finding defendant
competent nor waiver abrogates the court’s duty to hold a competency
hearing once ordered). Failure to do so is reversible error. Baker, 221 So.
3d at 641.

    Here, the court ordered a competency hearing but there is no indication
in the record that the hearing ever actually occurred. Thus, as conceded
by the State, we must reverse. As provided by this Court in Baker: “[o]n
remand, if the court can make a nunc pro tunc finding as to [A]ppellant’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. “However, if
the court finds, for any reason, that an evaluation of appellant’s
competency at the time of trial cannot proceed in a way that ensures
[A]ppellant’s due process rights, then the court should adjudicate [his]
current competency and, if [he] is competent, conduct a new trial on all
counts.” Id. at 641−42.


                                    2
  Reversed and remanded with instructions.

GROSS and TAYLOR, JJ., concur.

                          *      *           *

  Not final until disposition of timely filed motion for rehearing.




                                 3
