NICCOLE TAPP
v.
STATE OF FLORIDA
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Niccole Tapp appeals her conviction for burglary and petit theft, challenging the trial court's failure to hold a competency hearing before sentencing her. Although the trial court ordered psychological evaluations to assess competency, the record lacks evidence that the court actually conducted a competency hearing or made an independent determination of competency before proceeding to sentence. The appellate court affirmed the judgment but remanded for the trial court to enter a retroactive competency determination or, if competency cannot be established, to vacate the sentence and conduct new proceedings.
The court held that the trial court committed fundamental error by apparently finding reasonable grounds to believe Appellant was incompetent (evidenced by ordering competency evaluations) but then failing to conduct a competency hearing or make an independent determination of competency before proceeding to sentencing. The judgment was affirmed but remanded for the trial court to enter a written retroactive order on competency, or if competency cannot be retroactively determined or Appellant was found incompetent, to vacate the sentence and conduct new competency proceedings.
[1] Once a trial court has reasonable grounds to believe a defendant is incompetent and orders an examination, it must hold a hearing and enter a written order on the issue o…
[2] A trial court's failure to hold a competency hearing and enter a written order after ordering a competency examination constitutes fundamental error requiring reversal.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court presumably found reasonable grounds to believe Appellant was incompetent to proceed but failed to thereafter make an independent determination as to Appellant's competency”
Establishes the fundamental error: ordering competency evaluation implies a finding of possible incompetency, but failing to then hold a hearing and determine competency before sentencing violates due process and statutory requirements.
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Join FLexlaw to unlock all legal intelligenceAppellant Niccole Tapp was convicted by jury of burglary of a dwelling and petit theft. Prior to sentencing, Tapp's trial counsel moved for a psycholo…
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WALLIS, J.
Appellant, Niccole Tapp, appeals the judgment and sentence entered after a jury found her guilty of burglary of a dwelling and petit theft. On appeal, she challenges the trial court’s failure to hold a competency hearing before sentencing her. Prior to sentencing, Appellant’s trial counsel moved for a psychological evaluation to determine mitigating circumstances. The trial court entered an order appointing experts to examine Appellant's competency pursuant to Florida Rule of Criminal Procedure 3.210(b). The order stated that the experts were appointed for the purpose of determining whether Appellant is "competent to stand trial." However, the record does not contain the request for the evaluation, the doctor's report, or any evidence that the trial court conducted a competency hearing or independently adjudicated Appellant competent before proceeding with sentencing. Accordingly, on this record,
Appellant has demonstrated fundamental error as the trial court presumably found reasonable grounds to believe Appellant was incompetent to proceed but failed to thereafter make an independent determination as to Appellant's competency. Therefore, we affirm Appellant's judgment, and we remand for the trial court to enter a written order nunc pro tunc on Appellant's competency. If the trial court finds that Appellant's competency prior to sentencing cannot be retroactively determined, or if the trial court finds that 2
Appellant was not competent, the trial court shall vacate the sentence, order that a new competency evaluation be conducted, and hold a hearing on the new evaluation. See Torrez v. State, 294 So. 3d 390, 406 (Fla. 4th DCA 2020).
JUDGMENT AFFIRMED. REMANDED for Further Proceedings.
SASSO and NARDELLA, JJ., concur. 3