NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GEORGE GOLLOMAN, )
)
Appellant, )
)
v. ) Case No. 2D16-2583
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion August 18, 2017.
Appeal from the Circuit Court for DeSoto
County; James S. Parker and Kimberly
Bonner, Judges.
Howard L. Dimmig, II, Public Defender, and
Judith Ellis, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.
CASANUEVA, Judge.
George Golloman seeks review of his judgment and sentences for several
charges following a negotiated plea of no contest. Mr. Golloman argues that the trial
court erred in denying his motion to withdraw plea because there had been no
determination of competency at the time he entered his plea. We reverse the judgment
and sentence and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
Mr. Golloman was arrested on December 7, 2013, and charged with
possession of cocaine with intent to sell within 1000 feet of a school, resisting arrest
with violence, depriving an officer of a means of protection or communication, and
possession of drug paraphernalia. He was found incompetent to proceed on June 3,
2015. Upon reevaluation, he was determined to be competent by two doctors. A trial
date was set, and on the day of trial, Mr. Golloman accepted a negotiated plea to the
following charges, filed under an amended information: possession of a controlled
substance, resisting arrest with violence, attempt to deprive an officer of a means of
protection or communication, and possession of drug paraphernalia. He was sentenced
to thirty-six months' prison followed by twenty-four months' community control pursuant
to the plea agreement.
Mr. Golloman filed a timely motion to withdraw plea, arguing that an order
of competency had never been entered and his plea was involuntary. After
acknowledging the lack of a written order, the trial court found that the issue of
competency had been addressed, concluded that his plea was voluntary, and denied
the motion to withdraw. For the reasons discussed below, we must reverse.
II. ANALYSIS
"An individual who has been adjudicated incompetent is presumed to
remain incompetent until adjudicated competent to proceed by a court." Shakes v.
State, 185 So. 3d 679, 681 (Fla. 2d DCA 2016) (quoting Dougherty v. State, 149 So. 3d
672, 676 (Fla. 2014)). "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,
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against a defendant who is incompetent to proceed." Ross v. State, 155 So. 3d 1259,
1259 (Fla. 1st DCA 2015).
Upon receiving notice that the defendant has regained competence, the
trial court is required to hold a hearing to determine if the defendant is in fact competent
to proceed. Bylock v. State, 196 So. 3d 513, 515 (Fla. 2d DCA 2016); Shakes, 185 So.
3d at 681 (citing Roman v. State, 163 So. 3d 749, 751 (Fla. 2d DCA 2015)). At the
competency hearing, the trial court may hear live testimony of the court-appointed
experts, "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.' " Shakes, 185 So. 3d at
681 (quoting Dougherty, 149 So. 3d at 677-78). "However, the court must regard the
reports as advisory only." Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016).
The trial court must make an independent determination of competency
and enter a written order containing its findings. Shakes, 185 So. 3d at 681. Relying on
a stipulation of counsel to determine competency "improperly absolves the trial court
from making an independent determination regarding a defendant's competency to
stand trial." Dougherty, 149 So. 3d at 678. This is so even when the expert reports are
in agreement as to the defendant's competency. Cramer v. State, 213 So. 3d 1028,
1029 (Fla. 2d DCA 2017).
Once a reason for a competency hearing has arisen, the defendant has a
due process right to an independent finding of competency. Zern, 191 So. 3d at 965.
This right cannot be waived, and a trial court's failure to make such a finding constitutes
fundamental error. Id.
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In this case, the record does not reflect that the trial court made an
independent determination of competency before Mr. Golloman entered his plea. The
record shows that on March 23, 2016, the new presiding judge on the case inquired as
to whether there had been a formal adjudication as to competency. Counsel could not
recall, and the trial court ultimately relied on a stipulation of counsel that competency
had been restored. The trial court made no oral finding of competency, and no written
order of competency was entered.
On March 28, 2016, the day Mr. Golloman was scheduled for trial, the
court denied his request to be reevaluated for competency, stating, "at this point, we
have our standing evaluation, you know, after his discharge that tells us that he is
competent." After some discussion, Mr. Golloman entered a plea, and the trial court
sentenced him according to that plea agreement.
Mr. Golloman filed a timely motion to withdraw his plea based on the lack
of a proper determination of competency. The trial court denied the motion, stating:
I'm confident that we addressed his restored competency although
again I do acknowledge there was not an order presented that did
so. But the evaluations speak for themselves, and I would also
think that that lack of a -- of a formal entry of a record was quite
probably waived by entry of a plea without raising it at that time.
This was error.
Having been adjudicated incompetent to stand trial on June 3, 2015, Mr.
Golloman was thereafter presumed to be incompetent until, after proper notice and
hearing, the court found otherwise. See Roman, 163 So. 3d at 750-51. The expert
evaluations were merely advisory, and it was incumbent upon the trial court to make the
ultimate determination of competency. See Shakes, 185 So. 3d at 681; Zern, 191 So.
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3d at 964. However, the record shows that no determination of competency was ever
made by the trial court, nor was a written order entered. Counsels' stipulation as to
competency was insufficient, see Dougherty, 149 So. 3d at 678, and Mr. Golloman did
not waive this due process violation by entering a plea without raising the issue of
competency, see Zern, 191 So. 3d at 965.
III. CONCLUSION
We reverse the judgment and sentences and remand this matter for the
trial court to allow Mr. Golloman to withdraw his plea and to hold a proper competency
hearing in accordance with this opinion. As the trial court did below, we caution Mr.
Golloman that, should he withdraw his plea, the State can proceed against him on the
original charges.
Reversed and remanded with instructions.
SILBERMAN and MORRIS, JJ., Concur.
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