IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JULIAN O. BELIZAIRE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-3269
STATE OF FLORIDA,
Appellee.
___________________________/
Opinion filed April 12, 2016.
An appeal from the Circuit Court for Duval County.
James H. Daniel, Judge.
Nancy A. Daniels, Public Defender, Glenna Joyce Reeves, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant appeals his convictions and sentences for two counts of sexual
battery. Appellant asserts that the trial court (1) failed to conduct a proper
competency hearing and enter a written order finding him competent to proceed
after a prior adjudication of incompetency, (2) erred in denying his motion to
suppress his confession as the State failed to establish a knowing and voluntary
waiver of his constitutional rights, and (3) fundamentally erred in allowing
collateral crime evidence. We agree as to the first issue, and reverse and remand
for a nunc pro tunc competency proceeding. We affirm the second and third issues
without comment.
Facts
During a May 2013 hearing, when asked if he was satisfied with his counsel,
Appellant raised his competency as an issue, claiming he had not received a
psychiatric evaluation or received clearance. Appellant’s counsel indicated that he
had just come on to the case and asked for the chance to speak with his client.
Discussing the issue with the court, counsel indicated that Appellant was claiming
to have mental health difficulties that he had reported to his other counsel, and
Appellant asserted that the court previously said he would be entitled to a mental
health evaluation. The court denied this assertion, but informed Appellant that his
two attorneys could order an evaluation if they deemed it necessary. Thereafter, an
evaluation report by Appellant’s expert was filed that, although finding Appellant
to be acceptable as to almost all of the statutory factors, concluded that he was
incompetent to proceed based on one statutory factor. In response, the State filed a
motion for competency, requesting an examination. This request was granted, and
the State subsequently filed a report from its expert who found Appellant
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competent to proceed.
A competency proceeding was then held, with Appellant’s counsel
acknowledging receipt of the second report. During the hearing, the court
indicated it had not read the first report, and the State reviewed those findings. The
State questioned requesting this second evaluation, as Appellant’s own expert
found him competent on every statutory factor except one. Appellant’s counsel
asked for the opportunity to have his expert reevaluate Appellant, as his expert
might change his opinion based on the second evaluation and it would alleviate the
need for another hearing, and the court agreed. At the second competency hearing,
Appellant’s counsel stated that both the State’s report and his expert’s report
indicated that Appellant was competent to proceed and they could move forward
with the case. The court responded, “All right. So what we need now is just a trial
date.”
After this second competency hearing, no further discussions on his
competency occurred, no order on competency was entered, and the case
proceeded to trial. Appellant filed a pro se motion requesting law library
privileges to assist in his defense, which was granted, and provided input multiple
times throughout the jury selection and the trial. The jury found Appellant guilty
as charged. Appellant then filed multiple pro se motions, including a motion for
extension of time to file a motion for new trial, notice of appeal, statement of
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judicial acts, and request for documents from the clerk of court.
Analysis
As we previously held in Ross v. State, 155 So. 3d 1259, 1259-60 (Fla. 1st
DCA 2015):
Under Florida Rule of Criminal Procedure 3.210, a criminal
prosecution may not move forward at any material stage, which
includes entry of a plea, against a defendant who is incompetent to
proceed. Dougherty v. State, 149 So.3d 672, 676–77 (Fla. 2014). In
order to proceed against a defendant who has been adjudicated
incompetent, the trial court first must hold a hearing to determine
whether the defendant's competency has been restored, review
evidence from experts during the hearing, make an independent
determination that the defendant's competency has been restored, and
enter a written order to that effect. Id. at 677–78. These requirements
cannot be waived by a stipulation. Id. at 678.
Furthermore, as we recently indicated in Reynolds v. State, 177 So. 3d 296, 298
(Fla. 1st DCA 2015):
If the trial court fails to hold a competency hearing or enter a written
order of competency, reversal is required; however, a new trial . . . is
required only if the trial court is unable to conduct a nunc pro tunc
evaluation of the defendant's competency at the time of the original
trial or hearing. Id. at 679 (explaining that “a nunc pro tunc
competency evaluation could be done where ‘there are a sufficient
number of expert and lay witnesses who have examined or observed
the defendant contemporaneous with trial available to offer pertinent
evidence at a retrospective hearing’”) (quoting Mason v. State, 489
So.2d 734, 737 (Fla. 1986)); see also Merriell v. State, 169 So.3d
1287 (Fla. 1st DCA 2015); Hunter v. State, 174 So.3d 1011 (Fla. 1st
DCA 2015); Ross v. State, 155 So.3d 1259 (Fla. 1st DCA 2015).
Here, the record does not demonstrate that the trial court conducted a formal
competency hearing or made a conclusive and independent oral or written finding
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that Appellant had been restored to competency. We acknowledge that the trial
court conducted more than one competency hearing and reviewed the reports with
the parties, but we must interpret the court’s statement of “All right” as simply
accepting Appellant’s counsel’s stipulation that because both experts found
Appellant competent, they could proceed with the trial. Based on the foregoing,
we reverse and remand for a determination of whether the trial court can determine
Appellant’s competency nunc pro tunc or whether a new trial must be conducted.
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings.
ROBERTS, C.J., WOLF and THOMAS, JJ., CONCUR.
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