NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DEBORAH JEAN MOULTON, )
)
Appellant, )
)
v. ) Case No. 2D16-5416
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed November 15, 2017.
Appeal from the Circuit Court for Collier
County; Lauren L. Brodie, Judge.
Howard L. Dimmig, II, Public Defender, and
Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Linsey Sims-Bohnenstiehl,
Assistant Attorney General, Tampa, for
Appellee.
ORDER RELINQUISHING JURISDICTION
VILLANTI, Judge.
Deborah Jean Moulton appeals her conviction and sentence for the
reduced charge of principal to manslaughter with a firearm, contending that her due
process rights were violated because the trial court did not make an independent
determination that she had been restored to competency before it accepted her plea to
the reduced charge. Because it is not clear that the trial court made an independent
finding of competency, we relinquish jurisdiction for sixty days, as we recently did in
Cramer v. State, 213 So. 3d 1028 (Fla. 2d DCA 2017), for the trial court to conduct a
new competency hearing.
Moulton's competency was a recurring issue after she was arrested and
charged with one count of principal to second-degree murder with a firearm in May
2014. She was adjudicated incompetent to proceed on October 9, 2014, but the court
found her competency restored on January 7, 2015. Moulton was again adjudicated
incompetent to proceed on May 6, 2015. On that date, she was committed to the
Department of Children and Families (the Department) for treatment.
On August 6, 2015, the administrator of the Department's treatment center
forwarded a new competency evaluation report to the court. This report, authored by a
staff psychologist and dated August 6, 2015, concluded that Moulton was then
competent to proceed. The administrator of the treatment center requested that the
court arrange for Moulton to be returned to Collier County for further proceedings.
On August 27, 2015, the trial court held a hearing on Moulton's
competence. The hearing began with the following:
THE COURT: Do you waive her presence?
MR. VERDERAMO (defense counsel): Yes, Judge.
THE COURT: Okay.
MR. VERDERAMO: Judge, I've prepared an order.
Mr. Stewart (counsel for the State) has (inaudible) and has
no objection.
THE COURT: So both of you are agreeing that at this
point she has been restored to competency based on the
report filed, and we can proceed; is that correct?
MR. VERDERAMO: Yes, Judge, that's correct.
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THE COURT: Okay. Now what has to be done in
order to get this case ready for trial?
Counsel and the court then had a discussion concerning the timing of trial and various
pretrial proceedings, which included scheduling an evaluation of Moulton in support of
an insanity defense. Then, just before the hearing concluded, the following ensued:
MR. STEWART: Oh, and Judge, you're finding her
competent to proceed?
THE COURT: Yes, I entered the order—
MR. STEWART: Okay.
THE COURT: — based on the information. Does
that conclude the docket?
The order actually signed by the trial court states:
THIS MATTER having come before this Court for a
determination of competency, and the Court having been
advised in the premises on both the facts and the law
respecting the said Motion, it is therefore:
ORDERED AND ADJUDGED that the aforesaid
Motion is GRANTED.
Both parties agree the aforementioned Defendant is
competent to proceed to trial based upon the report dated
August 6, 2015 by Armando Collado, Ph.D.
After she was adjudged competent, Moulton entered into a negotiated
plea with the State to a reduced charge, and she was convicted and sentenced based
on her plea. She now contends that the court's acceptance of her plea violated due
process because the court did not make an independent determination that she had
been restored to competency.
As an initial matter, this issue is properly before this court in this appeal
even though Moulton did not file a motion seeking to withdraw her plea. The supreme
court has held that a trial court's failure to comply with the requirements of Florida Rules
of Criminal Procedure 3.210-3.212 regarding competency procedures constitutes a
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violation of due process. See Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014).
Moreover, this court has held that a defendant who was adjudicated incompetent before
entering a plea may raise the issue of an improper adjudication of competency on direct
appeal even in the absence of a motion to withdraw the plea. See Shakes v. State, 185
So. 3d 679, 683 (Fla. 2d DCA 2016) (quoting Ross v. State, 155 So. 3d 1259, 1260
(Fla. 1st DCA 2015)). Hence, we address the issue on the merits.
Turning to those merits, this court summarized the law in this area in its
discussion in Shakes.
"An individual who has been adjudicated incompetent
is presumed to remain incompetent until adjudicated
competent to proceed by a court." Dougherty v. State, 149
So. 3d 672, 676 (Fla. 2014) (quoting Jackson v. State, 880
So. 2d 1241, 1242 (Fla. 1st DCA 2004)). Florida Rules of
Criminal Procedure 3.210 through 3.212 "set forth the
required competency hearing procedures for determining
whether a defendant is competent to proceed or has been
restored to competency." Dougherty, 149 So. 3d at 677.
Rule 3.210(a) provides that "[a] person accused of an
offense or a violation of probation or community control who
is mentally incompetent to proceed at any material stage of a
criminal proceeding shall not be proceeded against while
incompetent." "[W]hen the court receives notice that a
defendant has regained competence, the court shall hold a
hearing to determine if a defendant is competent to
proceed." Roman v. State, 163 So. 3d 749, 751 (Fla. 2d
DCA 2015) (citing Jackson, 880 So. 2d at 1242); Fla. R.
Crim. P. 3.212(c). The trial court may take the testimony of
court-appointed experts designated under rule 3.211, or
where the parties and the trial court agree, the trial court
"may decide the issue of competency on the basis of the
written reports alone." Dougherty, 149 So. 3d at 677-78
(quoting Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971));
see Roman, 163 So. 3d at 751 ("If the parties agree, the trial
court can make its competency determination based solely
on experts' reports."). The trial court is tasked with making
an independent legal determination regarding whether the
defendant is competent, after considering the expert
testimony or reports and other relevant factors. Dougherty,
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149 So. 3d at 678 (holding that defendant may not stipulate
to ultimate issue of competency because trial court retains
responsibility to determine that issue). "[I]f a trial court finds
that a defendant is competent to proceed, it must enter a
written order so finding." Id.
Shakes, 185 So. 3d at 681 (alterations in original) (emphasis added). Hence, while the
trial court may rely on the written reports if the parties agree to that procedure, the court
may not rely solely on the parties' stipulation to competency, and the record must be
clear that the court has made an independent determination of the defendant's
competency. In other words, punctilious compliance with the competency restoration
procedures set forth in rules 3.210-3.212 is required.
Here, nothing in the record unmistakably shows that the trial court made
an independent determination of Moulton's competency. The court did not consider the
testimony of any experts at the hearing, and nothing in the record shows that the court
reviewed and relied upon the report prepared by the psychologist from the treatment
center. Cf. Merriell v. State, 169 So. 3d 1287, 1288 (Fla. 1st DCA 2015) (finding the
trial court's procedure sufficient when the court stated on the record that it had reviewed
the competency evaluation report and specifically stated that it was finding the
defendant competent to proceed); Molina v. State, 946 So. 2d 1103, 1105 (Fla. 5th DCA
2006) (noting that the court may rely on only the written reports regarding the
defendant's competency if the parties agree to this procedure). The trial court's
statement that it had entered the order based on "the information," made at the end of
the hearing, is too vague to unequivocally show that the court reviewed and relied on
the psychologist's report rather than the parties' agreement. Moreover, the trial court
could not have made a determination of competency based on Moulton's actions at the
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hearing because counsel had waived her appearance and she was not present. See
Dougherty, 149 So. 3d at 678 (noting that a court could disagree with expert's reports
based on other evidence such as the defendant's courtroom behavior or attorney
representations). Instead, the only indication in the record is that the trial court relied
solely on the "agreement" of defense counsel and the State that Moulton was
competent—a procedure which is not legally sufficient. See Roman v. State, 163 So.
3d 749, 750-51 (Fla. 2d DCA 2015); see also Zern v. State, 191 So. 3d 962, 965 (Fla.
1st DCA 2016); S.B. v. State, 134 So. 3d 528 (Fla. 4th DCA 2014). Because we cannot
presume that proper findings were made sub silencio and because the trial court did not
comply with the requirements of rule 3.212 in adjudicating Moulton competent, it
appears that her conviction and sentence may have been entered in violation of due
process.
The final question is the proper remedy. The supreme court in Dougherty
noted that "the remedy for a trial court's failure to follow the procedures discussed
above depends on the circumstances of each case." Dougherty, 149 So. 3d at 679. In
Shakes—which is procedurally and factually quite similar to this case—this court
reversed Shakes' conviction and sentence, remanded for the trial court to permit
Shakes to withdraw his plea, and ordered the trial court to hold a proper competency
hearing on remand. Shakes, 185 So. 3d at 683. More recently however, rather than
reversing the convictions, this court entered an order relinquishing jurisdiction for sixty
days and directing the trial court to conduct a new competency hearing. See Cramer,
213 So. 3d at 1029 (citing Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971)). In Fowler,
the supreme court explained:
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However, our finding [that the trial court's procedure
was inadequate] does not require vacation of the judgment
and sentence entered against defendant at this time. Knight
v. State, 164 So. 2d 229 (Fla. [3d DCA] 1964); United States
v. Walker, 301 F.2d 211 (6[th] Cir. 1962). Instead, the cause
is temporarily remanded to the Circuit Court of Pinellas
County with directions that the claim of insanity at the time of
trial be determined in a full hearing as required by CrPR
1.210(a). If upon such hearing the trial Court determines
that the defendant was sane at the time of trial, the Court is
ordered to forthwith transmit the entire record of the case,
including a transcript of the sanity hearing, and a copy of the
trial judge's order finding defendant sane, back to this
Court. . . .
If, however, the trial Court shall determine the
defendant was insane at the time of trial but is now sane, the
Court is directed to vacate the adjudication of guilt and
sentence, to give the defendant an opportunity to replead,
and to set a new trial date; or if the holding of the trial Court
shall be that the defendant was insane at the time of trial and
is now or remains insane, the Court is directed to vacate the
adjudication of guilt and sentence and commit the defendant
to the proper institution.
Fowler, 255 So. 2d at 515-16. In Cramer, this court followed the Fowler court's
suggestion and relinquished jurisdiction and "direct[ed] the trial court to conduct a new
competency hearing following the procedure set forth by the supreme court in Fowler."
213 So. 3d at 1029.
In this case, in light of the fact that Moulton entered a negotiated plea
agreement with the State to reduced charges, we follow Cramer and relinquish
jurisdiction to the trial court for sixty days from the date of this order and direct the trial
court to conduct a proper competency hearing in accordance with the guidance
provided in Fowler.
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Jurisdiction relinquished with directions.
LaROSE, C.J., and SALARIO, J., Concur.
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