        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                   RAFAEL HERIBE AVILESROSARIO,
                             Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D12-4269

                           [December 17, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Stephen Rapp, Judge; L.T. Case No. 2011CF003366BXX.

  Carey Haughwout, Public Defender, and John M. Conway, Assistant
Public Defender, West Palm Beach, for appellant.

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

WARNER, J.

   A bedrock principle of due process is that it is constitutionally
impermissible to hold criminal proceedings against a mentally
incompetent defendant. Where there is a reasonable question as to a
defendant’s competency, the trial court must hold a competency hearing.
In the present case, just prior to the commencement of appellant’s trial,
his defense counsel requested such a hearing, noting appellant’s prior
mental illness, his recent suicide attempt, and her inability to
communicate with appellant. Despite this, the court thought that
appellant “looks the same as he has always looked to me.” The court
refused to conduct a hearing. We hold that the court abused its discretion
and reverse Avilesrosario’s conviction. Moreover, the trial court required
appellant to go to trial wearing jail clothes. This too requires a reversal of
his conviction.

   Appellant Avilesrosario was arrested and subsequently charged with
robbery and resisting an officer without violence. Within two months, his
attorney moved for, and the court appointed, experts to evaluate him for
competency to stand trial. As a result of their examination, appellant was
adjudged incompetent to proceed and was committed to the Department
of Children and Families. He was reexamined six months later, and the
trial court found him competent to proceed based on a stipulation between
the parties.

    A jury trial was finally scheduled eight months later. On the day of
trial, Avilesrosario’s attorney filed a motion for continuance and a motion
to have him evaluated for competency to proceed. His attorney informed
the court that Avilesrosario had cut himself with a razor and almost “bled
out.” He had been hospitalized because of this and had only recently been
returned to jail. His attorney indicated that she didn’t think he was
mentally stable. Counsel indicated that she was not able to communicate
with him, and she didn’t believe that he was able to assist in his own
defense, nor could he manifest appropriate behavior in court.
Avilesrosario had been mumbling to himself when the jury venire was
present. The trial court stated, “He looks the same as he has always looked
to me.” Co-counsel stated that “Looks are deceiving. He is not the same.”
Both of his attorneys told the judge that he had decompensated and one
of them stated, “He is not the same Rafael Avilesrosario that I met before.
He is not the same. I have had a history with him and he is not the same.”

   The trial court denied the motion and ordered jury selection to
commence. Avilesrosario was in jail garb, and before the jury came in
counsel requested that the court wait until her secretary arrived with other
clothes for Avilesrosario. Counsel explained that the court had called up
the case while she was in trial in another court, so she did not know that
the case was called until the afternoon. She e-mailed her secretary to
bring over the clothes. The court refused to wait, and Avilesrosario
appeared at voir dire in jail garb. This prompted comments from more
than one juror that he obviously was being held in jail and therefore must
be guilty of something.      Jurors also commented on the fact that
Avilesrosario had his eyes closed and was not looking at them. This
prompted a rebuke of the jurors by the trial court. Eventually a jury was
seated.

   The case proceeded, the facts of which are not relevant to the issues we
address on appeal. After the state rested, the court asked Avilesrosario if
he wished to testify. Avilesrosario stated through a Spanish interpreter:

      I am not well. I am really not prepared to speak at this
      moment because I am under the effects of too much
      medication. I am just [here] to listen. I am taking -- I have
      taken a bunch of things. I have taken about twenty-one pills
      for my condition, my mental health condition.

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The court asked Avilesrosario if he wanted to wait until the next day to
testify and he responded that he took the same pills every day. The defense
then rested, and the court denied the defense motion for judgment of
acquittal. Avilesrosario was convicted and sentenced to fifteen years for
robbery. He appeals.

   It is constitutionally impermissible to hold criminal proceedings against
a mentally incompetent defendant. Nowitzke v. State, 572 So. 2d 1346,
1349 (Fla. 1990); Maxwell v. State, 974 So. 2d 505, 509 (Fla. 5th DCA
2008). In Hill v. State, 473 So. 2d 1253, 1257 (Fla. 1985), the supreme
court explained that the test in determining competency is whether the
defendant has “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding─and whether he has a rational
as well as factual understanding of the proceedings against him.”
(Emphasis in original).

    Florida Rule of Criminal Procedure 3.210(b) requires the trial court to
order a competency examination and conduct a hearing when it “has
reasonable grounds to believe that the defendant is not mentally
competent to proceed.” In other words, the question for the trial court is
not whether the defendant is incompetent, but whether the defendant may
be incompetent. Scott v. State, 420 So. 2d 595, 597 (Fla. 1982). Even
where the defendant has been found competent, the court must be vigilant
to reconsider a defendant’s competency if circumstances change. “[A] prior
determination of competency does not control when new evidence suggests
the defendant is at the current time incompetent.” Nowitzke, 572 So. 2d
at 1349. When the court has reasonable grounds to believe a criminal
defendant may not be competent to proceed, it has no choice but to
conduct a competency hearing. Tingle v. State, 536 So. 2d 202, 203 (Fla.
1988). A failure to do so constitutes an abuse of discretion. See Molina v.
State, 946 So. 2d 1103, 1106 (Fla. 5th DCA 2006) (abuse of discretion to
refuse to reconsider competency where evidence suggests that defendant
is incompetent).

   A court should consider all of the circumstances in evaluating whether
a competency hearing is necessary. See Calloway v. State, 651 So. 2d
752, 754 (Fla. 1st DCA 1995). And although there is no single factor which
compels a hearing, the representations of defense counsel require special
consideration. Id. Florida Rule of Criminal Procedure 3.210(b) provides
that upon motion filed by defense counsel, which is certified to be made in
good faith, the court shall conduct a competency hearing.



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   Culbreath v. State, 903 So. 2d 338 (Fla. 2d DCA 2005), presents a case
similar to this case. There, Culbreath was charged with violation of
probation. His attorney filed a motion to determine competency. Two
experts testified he was competent to proceed. The trial court found he
was malingering and was competent. Over a month and a half later, at
the beginning of his violation of probation hearing, defense counsel
advised the court that he did not think Culbreath was competent to
proceed. Culbreath was unable to communicate with him in jail, and
Culbreath had tried to commit suicide the week before. The court denied
the motion and proceeded to conduct the hearing. On appeal, the Second
District reversed, explaining that even if a defendant has been declared
competent at an earlier time, the court must remain receptive to revisiting
the issue if circumstances change. If the court is presented with
reasonable grounds to believe that the defendant may not have the
sufficient present ability to consult with his attorney and aid in the
preparation and presentation of his defense, the trial court must order a
hearing and examination. The Second District pointed to counsel’s
representations to the court, as well as Culbreath’s suicide attempt, as
showing reasonable grounds to require a new competency determination.

   Similarly, in this case, there was more than ample evidence which
reasonably called for a new competency determination. Avilesrosario had
attempted suicide and had just been released from the hospital. His
counsel could not communicate with him, and based upon the behavior
that he had already exhibited, she did not think he could exercise
appropriate courtroom demeanor. Counsel pleaded with the trial court,
noting that she had dealt with Avilesrosario for some time, and “he’s not
the same as he was.” The court rejected all of this, simply based upon
Avilesrosario’s appearance.

   Avilesrosario’s conduct during the trial only highlighted the
questionable nature of appellant’s competence. During voir dire, he kept
his eyes closed, prompting jurors to question what was wrong with him.
When the trial court asked whether he wanted to testify, he responded that
he was unable to speak because of the amount of medication he was
taking. All of this should have compelled the trial court to make further
examination of his competency to proceed. Not to do so was an abuse of
discretion. We must reverse.

   Even if we were not reversing because of the lack of a competency
hearing, we would also reverse because the trial court forced appellant to
appear at trial in his jail clothes. A defendant cannot be compelled to
stand trial in identifiable prison clothes, see Torres-Arboledo v. State, 524
So. 2d 403, 409 (Fla.), cert. denied, 488 U.S. 901 (1988), because it could

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impair the defendant’s presumption of innocence, which is a basic
component of the fundamental right to a fair trial. See Estelle v. Williams,
425 U.S. 501, 503, reh’g denied, 426 U.S. 954 (1976).

   The trial court erred by requiring Avilesrosario to appear in his jail
clothing throughout voir dire. The comments of two jurors provide a
perfect illustration of the potential harm to the presumption of innocence
when a defendant appears in jail clothing. One juror noted that “the man
has been arrested, he’s obviously been in jail.” Another juror commented
that she was assuming that Avilesrosario was convicted before, stating,
“He is wearing something that looks like he comes from jail, so in my mind
he committed a crime before.”

   The court was obviously anxious to get the trial started--so anxious
that the case was called while defense attorneys were in another courtroom
and unavailable until shortly before the trial commenced. They had
already sent for appropriate attire for Avilesrosario, but the trial court
unreasonably refused to wait. In making Avilesrosario appear in front of
the jury in jail clothing, the court violated Avilesrosario right to a fair trial.

   Because of our reversal of the foregoing issues, we do not address the
remaining issues. We reverse and remand for a new trial, contingent upon
a determination that Avilesrosario is competent to stand trial.

LEVINE and CONNER, JJ., concur.

                              *         *         *

   Not final until disposition of timely filed motion for rehearing.




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