IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MARK ENGLISH, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-2133
STATE OF FLORIDA,
Appellee.
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Opinion filed November 15, 2017.
An appeal from the Circuit Court for Leon County.
Hon. Kevin J. Carroll, Judge.
Michael J. Titus, Assistant Conflict Counsel, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Mark English challenges the trial court’s failure to conduct a competency
hearing, as well as his battery convictions under double jeopardy principles.
Concerning the battery convictions, the batteries were predicated on distinct acts and
occurred during different criminal episodes. As there is no double jeopardy
violation, we affirm as to this issue.
Concerning the failure to conduct a competency hearing, the trial court entered
an order, which stated that the court had “reasonable grounds to believe that the
Defendant may be incompetent to proceed,” appointed an expert for a competency
evaluation, and scheduled a hearing on the issue. However, no competency hearing
occurred on that date, and the court did not issue an order determining the defendant
competent to proceed to trial. After a trial, Appellant was convicted and sentenced.
The State concedes error, if there were reasonable grounds to conduct a
hearing. Here, there were reasonable grounds. Reynolds v. State, 177 So. 3d 296,
298 (Fla. 1st DCA 2015) (where “the trial court apparently had reasonable grounds
to believe that Appellant was not competent to proceed because the court appointed
an expert to evaluate Appellant”). “[I]f 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.” Trueblood v. State, 193 So. 3d 1060, 1061 (Fla.
1st DCA 2016). Accordingly, the trial court erred.
On remand, the trial court shall conduct a nunc pro tunc evaluation of the
defendant’s competency at the time of the original trial; if unable, a new trial is
required. Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014) (stating that a new trial
is unnecessary where a retroactive determination of competency is possible); see
also Brooks v. State, 180 So. 3d 1094, 1095 (Fla. 1st DCA 2015) (“If the trial court
fails to hold a competency hearing or enter a written order of competency, reversal
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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.”).
AFFIRMED in part; REVERSED in part; REMANDED in part with
instructions.
WETHERELL, RAY, and MAKAR, JJ., CONCUR.
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