         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-2548
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TRAVIS THURSTON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                          June 28, 2018


PER CURIAM.

     Travis Thurston appeals his convictions for aggravated
assault with a firearm, discharging a firearm in public, battery on
a law enforcement officer, and resisting arrest. We affirm.

     Thurston was arrested in 2015 after he shot a car and bit two
police officers in a McDonald’s parking lot. Thurston’s bizarre
behavior led the trial court to appoint an expert to determine
whether he was competent to proceed. But before the court could
make a competency determination, Thurston was taken into
federal custody on unrelated charges. Nearly two years later, he
returned to face his state charges. By then, a new judge and
prosecutor were assigned, and Thurston had a new public
defender.
     Two witnesses into Thurston’s trial, the new judge realized
the previous judge never made a competency finding. So during a
continuance, the court appointed another expert to evaluate
Thurston. That expert promptly evaluated Thurston, opined that
he was competent, and prepared a report. The court then held a
hearing and entered an order finding Thurston competent based
on the expert’s report.

     Thurston’s first argument on appeal is that it was
fundamental error to begin the trial without determining his
competency. See Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA
2016) (“[O]nce the court has reasonable grounds to question the
defendant’s competency, the court has no choice but to conduct a
hearing to resolve the question.”); Cotton v. State, 177 So. 3d 666,
667-68 (Fla. 1st DCA 2015) (“It is a due process violation to proceed
against an incompetent criminal defendant.”). We have held,
though, that a conviction can stand if the trial court can
retroactively determine competency. Chester v. State, 213 So. 3d
1080, 1083 (Fla. 1st DCA 2017); see also Dougherty v. State, 149
So. 3d 672, 679 (Fla. 2014). Here, although the trial was already
underway, the court promptly determined Thurston’s competency
once the issue reappeared. There was no fundamental error.

     Thurston’s second argument is that his trial counsel was
constitutionally ineffective. However, to succeed with this
argument on direct appeal, Thurston needed to show
“ineffectiveness obvious on the face of the record, indisputable
prejudice, and an inconceivable tactical explanation for the
conduct.” Morales v. State, 170 So. 3d 63, 67 (Fla. 1st DCA 2015)
(on rehearing). He has failed to meet this heavy burden, so he can
raise his ineffective-assistance claims only through a rule 3.850
motion.

    AFFIRMED.

WOLF, JAY, and WINSOR, JJ., concur.




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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel,
Gainesville, and Melissa Joy Ford, Assistant Regional Conflict
Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




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