       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         KENNETH W. POLLARD,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-1803

                           [September 5, 2018]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven J. Levin, Judge; L.T. Case No. 56-2014-CF-001071-
A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   Kenneth W. Pollard appeals his convictions and sentences after a jury
found him guilty of six felony charges.

    Prior to trial, defense counsel moved for a competency determination
pursuant to Florida Rule of Criminal Procedure 3.210(b). The trial court
appointed an expert to examine Pollard. However, the record does not
indicate that any competency hearing was held prior to trial, nor does the
record contain any competency evaluation conducted by the appointed
expert prior to the trial or an order determining Pollard’s competence prior
to trial.

    At the beginning of the sentencing hearing, defense counsel advised the
trial court that Pollard was contending the sentencing could not proceed
because he was not “Kenneth Pollard” and he was objecting to the
presentence investigation report discussing “Kenneth Pollard.” After being
sworn in, Pollard contended he was a man with a different name. Notably,
defense counsel advised the trial court that prior to trial, Pollard had been
determined competent after a prior court-appointed counsel had him
evaluated.    However, Pollard’s seemingly strange behavior at the
sentencing hearing prompted the trial court to order another competency
evaluation, and sentencing was postponed. After the post-trial evaluation
determined Pollard was competent to proceed, the sentencing hearing
resumed. At the beginning of the resumed sentencing hearing, the trial
court determined that Pollard was competent before imposing his
sentences. Thereafter, Pollard gave notice of appeal.

    “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)
(alteration in original) (quoting A.L.Y. v. State, 212 So. 3d 399, 402 (Fla.
4th DCA 2017)).

    The parties agree that the trial court erred in failing to conduct a
competency hearing and to make a competency determination prior to
trial, after previously ordering a competency evaluation. See id. at 641;
Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014); Deferrell v. State, 199
So. 3d 1056, 1060-61 (Fla. 4th DCA 2016). However, Pollard is not
automatically entitled to a new trial. “A new trial is not always necessary
where the issue of competency was inadequately determined prior to trial;
a retroactive determination of competency is possible.” Dougherty, 149 So.
3d at 679. As we have previously instructed:

      [I]f the [trial] 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.
      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 appellant’s due process rights, then the
      [trial] court should adjudicate [his] current competency and,
      if [he] is competent, conduct a new trial on all counts.

Baker, 221 So. 3d at 641-42 (citations omitted).

   In this case, defense counsel represented at the sentencing hearing that
prior to her appointment, an evaluation had been conducted before trial,
and Pollard was found to be competent. Though no competency evaluation
report is included in the record on appeal, the record does contain a receipt
indicating a competency evaluation was performed. Therefore, there are


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indications in the record that a competency evaluation was performed on
Pollard prior to trial and that he was deemed competent to proceed.

   Therefore, we remand the case for the trial court to decide whether it
can determine Pollard’s competency nunc pro tunc in accordance with our
prior decisions.

   Remanded with instructions.

GROSS and KLINGENSMITH, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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