RONALD PAK ZERN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On remand from a prior reversal, the trial court held an evidentiary hearing and found Appellant retroactively competent at the time of trial based on expert testimony regarding evaluations conducted shortly before trial. The appellate court affirmed the competency determination and re-entered judgment and sentence, but remanded to conform the written order to the trial court's oral ruling.
The trial court did not abuse its discretion in finding Appellant competent at the time of trial. The expert testimony regarding evaluations conducted shortly before trial constituted competent substantial evidence supporting the competency determination. The court must conform the written order to its oral ruling that Appellant was competent at the time of trial.
[1] Conflicting expert testimony regarding a defendant's competency at the time of trial constitutes competent substantial evidence from which a trial court may determine com…
[2] A trial court's retroactive determination of a defendant's competency at the time of trial, supported by competent substantial evidence, will not be disturbed on appeal.
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Explains why the pre-trial expert reports alone were insufficient but the hearing testimony was sufficient to establish competency.
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Join FLexlaw to unlock all legal intelligenceAppellant was subject to a prior reversal due to the trial court's failure to hold a proper competency hearing after receiving conflicting expert repo…
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In Zern v. State, 191 So.3d 962 (Fla. 1st DCA 2016), we reversed Appellant’s judgment and sentence based on the trial court’s failure to hold a proper competency hearing after receiving the appointed experts’ conflicting reports on Appellant’s competency, and we remanded for a retroactive determination of Appellant’s competency at the time of trial. On remand, the trial court held an evidentiary hearing at which the experts’ reports were introduced and lay and expert testimony was presents ed regarding Appellant’s competency. At the conclusion of the hearing, the trial court orally found that Appellant “was competent on November 12, 2013,[1] and was competent to proceed at the time of trial” (emphasis added). However, the order memorializing this ruling only stated that “on November 12, 2013, [Appellant] was competent to proceed to trial.” The court also re-entered Appellant’s original judgment and sentence. See id. at 965 (“If the court finds that Appellant was competent at the time of trial, it must enter a nunc pro tunc written order memorializing this finding with no change in the judgment.”).
On appeal, Appellant argues that the trial court abused its discretion in finding that he was competent at the time of trial because there was no evidence of his competency at that time. We disagree. Although the experts’ reports significantly pre-dated the trial and were insufficient on their own to establish Appellant’s competency at the time of trial, see, e.g., Brockman v. State, 852 So.2d 330, 333-34 (Fla. 2d DCA 2003), the evidence presented at the evidentiary hearing on remand also included conflicting testimony from the experts regarding their opinions of Appellant’s competency at the time of their additional evaluations of him shortly before trial.2 This testimony was competent substantial evidence from which the court could—and did—find that Appellant was competent at the time of trial. See Huggins v. State, 161 So.3d 335, 345 (Fla. 2014) (“[Wjhere there is evidentiary support for the trial court’s resolution of conflicting expert testimony, this court will not disturb the trial court’s competency determination.”).
Accordingly, we affirm the trial court’s retroactive competency determination and Appellant’s re-entered judgment and sen*187tence. However, we remand for the trial court to conform the written order to its oral ruling that Appellant “was competent ... at the time of trial.” Appellant need not be present for this ministerial act.
AFFIRMED and REMANDED with directions.
WETHERELL, BILBREY, and JAY, JJ., CONCUR.
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Citator
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Walker v. State (Fla. 4th DCA 2019)…entry of a nunc pro tunc order finding appellant competent to stand trial.”). The defendant need not be present for these three ministerial acts. James, 258 So. 3d at 469; Naugle v. State, 244 So. 3d 1127, 1128 (Fla. 4th DCA 2018); Zern v. State, 215 So. 3d 185, 186-87 (Fla. 1st DCA 2017). Affirmed; remanded with instructions. DAMOORGIAN and CIKLIN, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.…
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Pollard v. Fla. Dep't of Corr. (S.D. Fla. 2023)…Pollard’s competence to stand trial. See id. at 4–5. These two expert evaluations were, standing alone, more than sufficient for the state trial court to determine, nunc pro tunc, that Pollard had been competent during his trial. See Zern v. State, 215 So. 3d 185, 186 (Fla. 1st DCA 2017) (holding that “opinions of Appellant’s competency [taken] shortly before trial” were sufficient for a nunc pro tunc competency determination); Trueblood, 2021 WL 5041231, at *12 (“Although Dr. D’Errico’s evaluation was done…
Authorities Cited
- Zern v. State, 191 So. 3d 962 (Fla. 1st DCA 2016)
- Brockman v. State, 852 So. 2d 330 (Fla. 2d DCA 2003)
- Huggins v. State, 161 So. 3d 335 (Fla. 2014)