                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

OTIS BLAXTON,                        NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-318

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed March 17, 2016.

An appeal from the Circuit Court for Bradford County.
Robert Groeb, Judge.

Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      In this appeal pursuant to Anders v. California, 386 U.S. 738 (1967), this

Court’s review of the record revealed that Appellant’s competency was questioned,

but the record below did not include a competency evaluation or reflect that the

trial court conducted a hearing or issued an order on Appellant’s competency. We
therefore issued an order pursuant to State v. Causey, 503 So. 2d 321 (Fla. 1987),

requiring Appellant’s counsel to address these issues. After providing supplements

to the record, Appellant’s counsel filed an amended brief advising that, although

Appellant’s trial counsel stated on the record at a pre-trial hearing that he knew the

evaluating expert had concluded that Appellant was competent to stand trial and

“there’s no legal issue in that area to prevent us from going forward,” there is no

evidence in the record that the trial court reviewed the competency evaluation

report or entered an order adjudicating Appellant competent to proceed. The State

then filed with this Court supplemental records including a copy of the competency

evaluation report, which did conclude that Appellant was competent to proceed to

trial. However, it appears the report itself has not yet been filed with the clerk of

the lower tribunal, and the record does not reflect that the requirements of judicial

review and adjudication of competency were met below.

      As we held recently in Brooks v. State, 180 So. 3d 1094, 1096 (Fla. 1st DCA

2015), these circumstances require that we reverse and remand for adjudication of

whether Appellant was competent at the time he was tried:

              Because there is no indication that the trial court conducted a
      competency hearing or ruled on Brooks’ competency, we are
      compelled to reverse the judgments and sentences. On remand, the
      court shall hold a hearing to determine Brooks’s competency to stand
      trial. If there is evidence that existed previously which supports a
      finding that Brooks was competent at the time of trial, the court may
      make a determination of competency, nunc pro tunc, with no change
      in the judgment. . . . However, if the court cannot make a retroactive
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      determination, it must properly adjudicate Brooks’s present
      competency and, if Brooks is competent to proceed, conduct a new
      trial.

Here, unlike in Brooks, it is undisputed that a competency evaluation was

completed. Therefore the trial court may be able to find, nunc pro tunc, that

Appellant was competent at the time of his previous trial. This does, however,

require a hearing and entry of an order adjudicating Appellant competent nunc pro

tunc to the date of his trial. Id.; see also Cotton v. State, 177 So. 3d 666, 668 (Fla.

1st DCA 2015) (requiring competency hearing on remand).

      REVERSED and REMANDED for further proceedings.

WOLF, THOMAS, and KELSEY, JJ., CONCUR.




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