IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
LOUIS BURNEY, JR.,
Appellant,
v. Case No. 5D17-1619
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed May 18, 2018
Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.
James S. Purdy, Public Defender, and
Andrew Mich, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee.
PER CURIAM.
Louis Burney, Jr. (“Burney”) appeals his judgment and sentence for kidnapping
with a weapon and aggravated battery with a deadly weapon or causing great bodily
harm. Burney does not contest the merits of his case but contends that the trial court
erred in finding him competent to proceed to trial based upon the parties’ stipulation rather
than making an independent determination. We agree.
The courts have consistently held that it is error for a trial court to base its decision
regarding a defendant’s competency upon a stipulation rather than making an
independent determination. For example, in Dougherty v. State, 149 So. 3d 672 (Fla.
2014), the Florida Supreme Court explained:
[N]othing in our precedent or the State’s argument persuades
us that a defendant can stipulate to the ultimate issue of
competency, even where the written reports reach the same
conclusion. Even in a situation where all the experts opine
that a defendant is competent, the trial court could
presumably disagree based on other evidence such as the
defendant’s courtroom behavior or attorney representations.
Further, the language of rule 3.212(c)(7) and rule 3.212(b)
discussed above does not allow parties to stipulate to the
issue of competency. See Jones, 125 So. 3d at 984 (citing
Macaluso, 12 So. 3d at 915). . . . Thus, based on our
precedent and the procedural rules for competency
determinations, a defendant cannot stipulate that he is
competent, particularly where he has been previously
adjudicated incompetent during the same criminal
proceedings. Further, if a trial court finds that a defendant is
competent to proceed, it must enter a written order so finding.
Id. at 678 (footnote omitted). In Rumph v. State, this court cited Dougherty in holding that
“[t]he parties may stipulate to deciding competency based on the written expert reports
rather than live expert testimony, but the defendant and the other parties may not stipulate
to competency itself . . . as the trial court must make an independent determination on
the issue.” 217 So. 3d 1092, 1095 (Fla. 5th DCA 2017) (citing Dougherty, 149 So. 3d at
678).1
1
The courts in other decisions have reached the same conclusion and remanded
cases in which the trial court agreed to a stipulation of competency rather than making an
independent determination. See Carrion v. State, 235 So. 3d 1051, 1053 (Fla. 2d DCA
2
In instances where a competency finding is erroneously based on the stipulation
of the parties, the courts generally remand the case to the trial court to make a retroactive
determination of competency. This procedure was explained by the Fourth District Court
in Baker v. State, 221 So. 3d 637 (Fla. 4th DCA 2017):
Thus, on remand, if the court can make a nunc pro tunc finding
as to appellant’s competency based upon the existence of
evaluations performed contemporaneous with trial and
without relying solely on a cold record, and can do so in a
manner which abides by due process guarantees, then it
should do so and enter a corresponding written order.
Id. at 641; accord Holland v. State, 185 So. 3d 636, 637 (Fla. 2d DCA 2016) (“Accordingly,
we remand the case to the trial court for entry of a nunc pro tunc order finding Holland
competent to stand trial.”). In making this determination, “[t]he parties may agree to the
use of the previous evaluators’ written reports, which shall be filed with the court and
placed in the record.” Sheheane, 228 So. 3d at 1181. If the trial court determines that a
defendant was competent at the time of the trial, it must enter a nunc pro tunc written
2018) (“The trial court erred in failing to make an independent competency finding and in
failing to enter a written order of competency.”); Moulton v. State, 230 So. 3d 934, 937
(Fla. 2d DCA 2017) (“[W]hile 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.”); Hanna v. State, 232 So. 3d 1026, 1027
(Fla. 4th DCA 2017) (“The trial court’s reliance on this stipulation was erroneous.”);
Sheheane v. State, 228 So. 3d 1178, 1181 (Fla. 1st DCA 2017) (“To find, as the trial court
did here, there were reasonable grounds to believe Appellant may be incompetent, and
then allow that same potentially incompetent individual to waive his right to determine
competency, does not comport with due process.”); Zern v. State, 191 So. 3d 962, 965
(Fla. 1st DCA 2016) (“The record in this case establishes that the trial court relied on the
stipulation of defense counsel and the preponderance of the experts’ ultimate opinions to
make its competency determination, without having read all the evaluations. It does not
show an independent finding.”); Williams v. State, 169 So. 3d 221, 223 (Fla. 2d DCA
2015) (“Because the trial court erroneously allowed Williams to stipulate to his
competency, we must reverse.”).
3
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
LOUIS BURNEY, JR.,
Appellant,
v. Case No. 5D17-1619
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed May 18, 2018
Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.
James S. Purdy, Public Defender, and
Andrew Mich, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee.
PER CURIAM.
Louis Burney, Jr. (“Burney”) appeals his judgment and sentence for kidnapping
with a weapon and aggravated battery with a deadly weapon or causing great bodily
harm. Burney does not contest the merits of his case but contends that the trial court