       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           KENDRICK SILVER,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D15-3961

                              [May 25, 2016]

   Petition for writ of habeas corpus to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case
No. 2007CF008020CXX.

   Kendrick Silver, Miami, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    Kendrick Silver filed a petition alleging ineffective assistance of
appellate counsel (IAAC). We treat the petition as a petition for a writ of
habeas corpus, and grant the petition in part, finding merit in one of his
three grounds, claiming appellate counsel should have argued that the
trial court erred in proceeding to trial without holding a competency
hearing in accordance with Florida Rule of Criminal Procedure 3.210. We
vacate the challenged convictions and sentences because the trial court
appointed experts to examine Silver to determine whether he was
competent to proceed, but never held a competency hearing or ruled on
his competence before he was tried.

   Following a jury trial, Silver was found guilty of three counts of
attempted second degree murder, and one count each of petit theft and
assault. This Court affirmed the direct appeal. Silver v. State, 149 So. 3d
54 (Fla. 4th DCA 2014).

   Silver alleges that the trial court appointed two experts to examine him
for competency to stand trial, but neither examined him. The State has
not refuted his allegations. The record contains orders appointing the two
experts, who were directed to submit, to the trial court and to counsel for
both sides, written evaluations of his competence to proceed pursuant to
Florida Rule of Criminal Procedure 3.211(a) and any recommended
treatment pursuant to rule 3.211(b). However, the record contains no
doctor’s reports, no hearing on Silver’s competence, and no order on the
matter.

    The direct appeal record does not indicate what caused Silver’s
competence to be questioned. During the hearing when the experts were
appointed, trial counsel referred to the motion he had filed to determine
competence to proceed, but no such motion was found in the record on
appeal. Nevertheless, a trial court’s appointing experts to evaluate a
defendant’s competency suggests there were reasonable grounds to do so.
See Reynolds v. State, 177 So. 3d 296, 298 (Fla. 1st DCA 2015) (“Here, the
trial court apparently had reasonable grounds to believe that Appellant
was not competent to proceed because the court appointed an expert to
evaluate Appellant.”).

    “[O]nce a trial court has reasonable grounds to believe that a criminal
defendant is not competent to proceed, it has no choice but to conduct a
competency hearing.” Monte v. State, 51 So. 3d 1196, 1202 (Fla. 4th DCA
2011) (citing Mairena v. State, 6 So. 3d 80, 85 (Fla. 5th DCA 2009); Carrion
v. State, 859 So. 2d 563, 565 (Fla. 5th DCA 2003)). “There does not appear
to be any discretion on the part of the trial court once it makes the
determination that there are reasonable grounds to believe that the
defendant is not mentally competent. If the trial judge has reasonable
grounds to believe that a criminal defendant is not competent to proceed,
then the court must conduct a competency hearing.” Carrion, 859 So. 2d
at 565. The fact that the experts’ reports were not filed and the trial court
did not adjudicate Silver competent to proceed would have entitled him to
a reversal on direct appeal. See Blaxton v. State, 41 Fla. L. Weekly D699,
2016 WL 1051813 (Fla. 1st DCA Mar. 17, 2016) (reversing conviction
where defense counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), but court’s own examination of record revealed that
competency evaluation report had not been filed and record did not reveal
compliance with requirements of judicial review and adjudication of
competency). Accordingly, we determine that Silver demonstrated he was
prejudiced by appellate counsel’s omission.

   The State asserts that if relief is warranted, a retroactive inquiry into
Silver’s competency will suffice, as in Cotton v. State, 177 So. 3d 666, 668-
69 (Fla. 1st DCA 2015), and Monte, 51 So. 3d at 1203. These decisions
provide that, on remand, the trial court might be able to make a retroactive

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determination of the defendant’s competency at the time of the trial or
hearing in question, if evidence exists to support such a determination. If
not, a new trial or hearing would be required after a determination of the
defendant’s present competency.

   “[A] hearing to determine whether a defendant was competent at the
time he was tried generally cannot be held retroactively.” Tingle v. State,
536 So. 2d 202, 204 (Fla. 1988). The failure to conduct a competency
hearing generally requires reversal of the conviction and sentence and
remand for a new trial after the defendant has been determined to be
competent. Id. But the supreme court has recognized that “a nunc pro
tunc competency evaluation” is possible if “‘a sufficient number of expert
and lay witnesses who have examined or observed the defendant
contemporaneous with trial’” are available. Dougherty v. State, 149 So. 3d
672, 679 (Fla. 2014) (quoting Mason v. State, 489 So. 2d 734, 737 (Fla.
1986)). The remedy depends on the circumstances being sufficient to
assure the defendant due process of law. Id. at 679.

   In the event that evidence which existed at the time of trial supports a
finding that Silver was competent at that time, the trial court on remand
may make that determination nunc pro tunc, and reimpose Silver’s
convictions and sentences. Otherwise, it must adjudicate his current
competency and, if he is competent, conduct a new trial. Dougherty;
Cotton; Monte; Blaxton.

  Petition Granted; Convictions      and   Sentences    Reversed;   Cause
Remanded with Instructions.

GROSS and DAMOORGIAN, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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