DAVID G. MCNEILL

v.

STATE OF FLORIDA

HARRIS, J.

David McNeill appeals the judgment and sentence imposed following trial. McNeill argues, among other things, that the trial court erred in eventually concluding that he was competent to proceed to trial and thereafter to sentencing. We agree with McNeill that it is unclear from the record whether the trial court made a proper competency determination and therefore, we reverse and remand for two separate nunc pro tunc competency determinations, if possible. We find no error in the remaining issues raised by McNeill.

The State charged McNeill in 2017 with Sexual Battery and Giving False Information to Law Enforcement During Investigation. Prior to trial, his counsel filed a notice of reasonable grounds to believe that McNeill was not competent to proceed, and the court appointed an expert to examine McNeill’s competency.

At the May 3, 2018 competency hearing, McNeill’s attorney indicated that he had seen the expert’s report, and while the report was not filed with the court, McNeill’s counsel advised the court and the State that the report found his client competent to proceed trial. The trial court did not separately inquire of McNeill. Instead, the court set the case ready for trial, entering a one-line order stating, “Defendant found competent to proceed.” An actual copy of the expert’s evaluation was filed by defense counsel later that same morning. 2 This was the trial court’s first error. While the court did enter a pre-trial order finding McNeill competent, that order was filed in open court prior to the time the expert’s evaluation was filed. Thus, the court’s finding of competency could not have been based on the report itself but rather on McNeill’s counsel’s representation that the report indicated that McNeill was competent to proceed. See Shakes v. State, 185 So. 3d 679, 682 (Fla. 2d DCA 2016) (“To the extent that the trial court relied on defense counsel’s representation that Shakes was competent, such reliance is not permitted.”).

A requirement of a proper competency hearing is that the trial court actually review the expert’s report. Belizaire v. State, 188 So. 3d 933, 935–36 (Fla. 1st DCA 2016). Therefore, because the record does not demonstrate that the trial court made a conclusive and independent finding prior to trial, we reverse and remand for a determination of whether the trial court can, at this stage, determine McNeill’s competency nunc pro tunc prior to trial. See Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014) (explaining that “a nunc pro tunc competency evaluation could be done where ‘there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing’”). 3 After the jury found McNeill guilty as charged, McNeill’s counsel moved to continue sentencing, again seeking to have his client evaluated due to competency issues. While McNeill’s counsel did not provide a specific reason as to his reasonable grounds to question his client’s competency, and while it appears that he did not file a written competency motion, the court nonetheless entered an order, finding that McNeill’s competence to proceed was properly raised by stipulation between the parties and appointed an expert for another competency evaluation. The expert’s report determining that McNeill was competent to proceed was filed, and the case was set for sentencing. The record is devoid of any order or finding that McNeill was in fact competent to proceed. Despite the absence of a competency determination, the court sentenced McNeil to 13 years in prison on count one and to time served on count two.

The trial court erred again when it failed to make a determination that McNeil was competent to proceed with sentencing. “[O]nce the trial court enters an order appointing experts upon a reasonable belief that the defendant may be incompetent, a competency hearing must be held.” Cochran v. State, 925 So. 2d 370, 373 (Fla. 5th DCA 2006). The trial court must enter a written order memorializing its finding of competency or incompetency. See Fla. R. Crim. P. 3.212(b). A defendant cannot waive his 4 right to an independent finding of competency and a trial court’s failure to make such a finding constitutes fundamental error. Golloman v. State, 226 So. 3d 332, 335 (Fla. 2d DCA 2017).

The State argues that the record is devoid of any reasonable grounds or bona fide question as to McNeill’s competency and thus, a second competency hearing might not have been required. However, the trial court’s appointment of a second mental health expert to evaluate McNeill pending sentencing proceedings showed that the court found reasonable grounds to question whether McNeill was competent to proceed. See Reynolds v. State, 177 So. 3d 296, 298 (Fla. 1st DCA 2015) (holding “trial court apparently had reasonable grounds to believe that Appellant was not competent to proceed because the court appointed an expert to evaluate Appellant”).

Thus, the trial court committed fundamental error by failing to strictly adhere to Florida Rule of Criminal Procedure 3.210(b). McNeill was entitled to an independent judicial determination of his competency prior to the time of trial and prior to the date of sentencing. See Dougherty, 149 So. 3d at 679.

Accordingly, we reverse and remand with instructions for the trial court to determine whether it is possible to conduct a retrospective hearing on McNeill’s competency, prior to trial and prior to his sentencing date. See id. 5 If, on remand, the trial court is able to determine that McNeill was competent to proceed at the time of trial and sentencing, then it shall enter a nunc pro tunc written order adjudicating him competent at those times. See id. If the court determines however, that it is not possible to do so, or it conducts a hearing and finds that McNeill was incompetent on either date in question, then it should vacate the judgment and/or sentence and start anew.

REVERSED AND REMANDED with instructions.

LAMBERT and NARDELLA, JJ., concur. 6