IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RHODERICK LEWIS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-4006
STATE OF FLORIDA,
Appellee.
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Opinion filed April 27, 2016.
An appeal from the Circuit Court for Escambia County.
Ross M. Goodman, Judge.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, and Rhoderick Lewis, pro se, for Appellant.
Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney
General, Tallahasee, for Appellee.
PER CURIAM.
Appellant seeks review of his judgment and sentence for various offenses
following his nolo contendere plea. He contends that the trial court erred in
accepting his plea without conducting a competency hearing to determine that his
competency had been restored. Based on the state’s proper concession of error, we
reverse and remand.
The trial court previously declared Appellant incompetent. Thereafter, the
parties stipulated to Appellant’s competency, and Appellant pled nolo contendere
and was sentenced to a lengthy prison term. Appellant timely filed a motion for
postconviction relief in which he raised the issue of his competency. The trial
court found that accepting the stipulation of competency was error and vacated
Appellant’s judgment and sentence. Approximately six months later, in November
2012, after Appellant again pled nolo contendere, the trial court accepted the plea
and imposed the same sentence. Although the trial court had ordered a
competency evaluation of Appellant several months before the second plea and
sentencing hearing, the record does not reflect that the court held a competency
hearing, reviewed the expert evaluation, or entered a written order determining
Appellant’s competency prior to the resentencing hearing.
Once a defendant is declared incompetent, no material stage of a criminal
prosecution, including entry of a plea and sentencing, may proceed. See
Dougherty v. State, 149 So. 3d 672, 677-78 (Fla. 2014); Ross v. State, 155 So. 3d
1259 (Fla. 1st DCA 2015); Fla. R. Crim. P. 3.210. Therefore, because the trial
court did not follow the required procedures for declaring Appellant competent to
enter his plea and to be sentenced, Appellant’s judgment and sentence must be
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reversed. On remand, the trial court must hold a hearing to determine Appellant’s
competency to proceed. If evidence existing at the time of the plea supports a
finding that Appellant was competent in November 2012 when he entered his
second plea and was resentenced, then the trial court may make a retroactive
determination of competency with no change to Appellant’s judgment and
sentence. See Dougherty, 149 So. 3d at 679. If the trial court cannot make this
determination, it must conduct a proper determination of Appellant’s competency
and, if the court finds Appellant competent, the case must proceed to trial or a new
plea. See id.; Brooks v. State, 180 So. 3d 1094 (Fla. 1st DCA 2015); Cotton v.
State, 177 So. 3d 666 (Fla. 1st DCA 2015); Reynolds v. State, 177 So. 3d 296 (Fla.
1st DCA 2015).
REVERSED and REMANDED with instructions.
WOLF, WETHERELL, and KELSEY, JJ., CONCUR.
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