IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WILMARIO TRUEBLOOD, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-2477 & 14-2478
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed June 15, 2016.
An appeal from the Circuit Court for Leon County.
Jackie L. Fulford, Judge.
Melissa Joy Ford, Assistant Conflict Counsel, Office of Criminal Conflict and
Civil Regional Counsel, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General; Quentin Humphrey, Assistant Attorney
General; and Trisha Meggs Pate, Bureau Chief-Tallahassee Criminal Appeals,
Tallahassee, for Appellee.
PER CURIAM.
In these consolidated cases, Wilmario Trueblood appeals his judgments and
sentences for two counts of burglary and one count of grand theft. He argues that
the trial court erred by failing to hold a competency hearing after finding
reasonable grounds to appoint an expert who conducted an examination of
Trueblood. He also claims the trial court abused its discretion by admitting
testimony about other crimes he committed. We affirm the latter issue without
comment, but agree that it was error to not hold a competency hearing.
On April 9, 2013, defense counsel filed a motion for competency evaluation
in each case pursuant to Rules 3.210 and 3.211(a) and (b), Florida Rules of
Criminal Procedure. Defense counsel alleged that Trueblood “has an extensive
mental history” and that counsel did not believe he was “capable of assisting in the
preparation of his defense, capable of testifying in his own defense, or capable of
maintaining appropriate courtroom behavior.” Defense counsel averred that the
motion was made in good faith and on reasonable grounds. The trial court granted
the motion, stating that the issue of competency had “been raised in accordance
with the provisions of Rule 3.210(b), Fla. R. Crim. P.” and the trial court had
“reasonable grounds to believe that the Defendant may be incompetent to
proceed.” The trial court appointed Dr. D’Errico to examine him. After an
examination, Dr. D’Errico recommended the trial court find Trueblood competent.
No hearing was held, and the trial court made no oral or written finding on
Trueblood’s competency to proceed.
Defense counsel then filed a second motion to determine competency,
stating:
Although Dr. D’Errico found the Defendant competent to proceed, the
undersigned is having a hard time believing that the defendant is
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competent to proceed based on conversations with the undersigned
and would request a second opinion.
A hearing on the second motion was held, during which defense counsel explained
that even though Dr. D’Errico found Trueblood competent, counsel doubted the
finding given the nature of the case since Trueblood rejected a thirty-five year plea
offer, despite scoring a minimum of sixty-nine years and a maximum of 735. So
the trial court conducted a plea colloquy of sorts, but did not conduct a competency
hearing. The trial court ultimately denied the motion for a second competency
evaluation. Defense counsel filed a motion seeking to renew the request for
competency evaluation without further arguments and in order to preserve the issue
for appeal, which was denied.
A court’s decision as to whether a competency hearing or a new evaluation
is necessary is reviewed for abuse of discretion. Rodgers v. State, 3 So. 3d 1127,
1132 (Fla. 2009) (providing standard of review for denial of hearing); see Fla. R.
Crim. P. 3.210(b) (providing that the court “may order” examination by experts);
Boggs v. State, 575 So. 2d 1274, 1275 (Fla. 1991) (holding that trial court should
have ordered additional evaluations). However, if a “reasonable ground to believe
that the defendant is not mentally competent to proceed” exists, then the
requirement that the court hold a hearing is mandatory. Boggs, 575 So. 2d at 1275;
Cotton v. State, 177 So. 3d 666, 668 (Fla. 1st DCA 2015) (“[O]nce a trial court has
reasonable grounds to question competency, the court has no choice but to conduct
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a competency hearing.”).
Trueblood correctly claims that he was due a competency hearing after the
first motion and corresponding competency report and likens his case to Reynolds
v. State, 177 So. 3d 296 (Fla. 1st DCA 2015), wherein this Court explained,
[T]he trial court apparently had reasonable grounds to believe that
Appellant was not competent to proceed because the court appointed
an expert to evaluate Appellant. Although the expert evidently
determined that Appellant was competent, the trial court did not hold
a hearing on the issue or enter an order finding Appellant competent
to proceed before accepting his plea admitting to the probation
violation. This was error.
Id. at 298. Similarly, the trial court here found reasonable grounds to appoint an
expert, who then assessed Trueblood and found him competent. But “reports of
experts are merely advisory to the [trial court], which itself retains the
responsibility of the [competency] decision.” Peede v. State, 955 So. 2d 480, 488
(Fla. 2007). The trial court never held a competency hearing and never made a
competency determination. The error occurred at that point, entitling Trueblood to
relief. The plea colloquy associated with the second motion did not cure the
existing error.
[O]nce the trial court enters an order appointing experts upon a
reasonable belief that the defendant may be incompetent, a
competency hearing must be held. We cannot determine why no
hearing took place . . . or why the case was originally called for trial
on . . . a date prior to the competency hearing. For whatever reason,
petitioner apparently was not examined by the second mental health
expert, and a competency hearing was never held.
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Cochran v. State, 925 So. 2d 370, 373 (Fla. 5th DCA 2006) (granting petition for
writ of habeas corpus alleging ineffective assistance of counsel for failing to raise
this issue on appeal). For clarity, the hearing on the second motion for competency
evaluation was to determine whether or not there were reasonable grounds to
believe that Trueblood may be incompetent in order to justify an examination—
now a second examination. The court did not find such grounds. But regarding the
first motion for competency evaluation, the trial court already found that
reasonable grounds existed and appointed an expert. A competency hearing was
the appropriate next step after the evaluation was conducted. As this Court
explained in Brooks v. State, 180 So. 3d 1094, 1095-96 (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. A nunc pro tunc competency evaluation can 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.
(Internal citation and quotation marks omitted); see also Zern v. State, 2016 WL
2750410 (May 12, 2016) (citing Brooks). In both Brooks and Zern the failure to
hold a competency hearing resulted in reversals, as is required here as well.
AFFIRMED in part, REVERSED and REMANDED in part with
instructions.
ROBERTS, C.J., MAKAR, and OSTERHAUS, JJ., CONCUR.
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