FREDRICK C. TORRES

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

FREDRICK C. TORRES,

Appellant,

v. Case No. 5D17-3786

STATE OF FLORIDA,

Appellee. ________________________________/

Opinion filed September 12, 2019

Appeal from the Circuit Court for Orange County, Robert J. Egan, Judge.

James S. Purdy, Public Defender, and Ailene

S.

Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

Fredrick C. Torres appeals his judgment and sentence of life in prison for attempted first-degree murder with a weapon after trial. Torres raises two arguments. First, he contends that the trial court erred in denying his motion for judgment of acquittal. Based upon our examination of the trial transcript and the standard of review that we must apply, we affirm on this issue without further discussion. See Durousseau v. State, 55 So. 3d 543, 556 (Fla. 2010) (“A trial court’s denial of a motion for judgment of acquittal is reviewed de novo to determine solely if the evidence is legally sufficient.” (citing Jones v.

2 State, 790 So. 2d 1194, 1196–97 (Fla. 1st DCA 2001))).

Torres’s second argument for reversal is that the trial court committed fundamental error when, after previously having reasonable grounds to believe that Torres may be incompetent to proceed,¹ it later found him to be competent based solely on the stipulation of the parties. The State has commendably conceded error. See Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014) (holding that once the trial court has reasonable grounds under Florida Rule of Criminal Procedure 3.210 to believe that a defendant may not be competent, a defendant cannot thereafter stipulate to his or her own competency and the court, by accepting such a stipulation, improperly absolves itself from making an independent determination regarding a defendant’s competency to proceed).

Torres requested in this appeal that this court remand his case back to the trial court for that court to determine whether it can make a competency determination nunc pro tunc to the time of trial. See id. at 679 (“A new trial is not always necessary where the issue of competency was inadequately determined prior to trial; a retroactive determination of competency is possible.” (citing Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971))). The State agreed. Torres further reminded that if the trial court finds either that he was not competent at the time of trial or that it cannot make such a nunc pro tunc competency determination, then it must vacate his judgment and sentence and grant him a new trial, provided that he is now competent to proceed to trial.² Based upon the State’s concession, with which we agreed, we relinquished

The trial court entered a detailed written order finding Torres competent to proceed nunc pro tunc to the date when it had earlier found Torres competent by stipulation. The court, which is the same court that had previously presided over Torres’s earlier proceedings below, including his trial in 2017, also detailed in its order some of its earlier interactions with and observations of Torres and further found that Torres was competent up to and through his trial and sentencing hearing. Because the trial court’s nunc pro tunc order finding Torres to be competent is supported by competent substantial evidence and shows that it made an independent determination as to his competency, we affirm the judgment and sentence.

3 We have previously issued written opinions in which we have remanded cases for nunc pro tunc competency hearings. See Burney v. State, 247 So. 3d 650 (Fla. 5th DCA 2018); Bynum v. State, 247 So. 3d 601 (Fla. 5th DCA 2018). In the instant case, rather than issue an opinion, it appeared to be more efficient and a better utilization of judicial resources to instead simply relinquish jurisdiction to the trial court by order for a limited period of time for that court to hold a competency hearing.

4

We do, however, find it necessary to remand this case for the correction of a clerical error. When first entered, the judgment and sentence stated that Torres was convicted of first-degree murder with a weapon, instead of attempted first-degree murder with a weapon, as determined by the jury. Torres timely filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct this error. The trial court granted the motion, but the corrected sentencing documents inadvertently deleted “with a weapon” from Torres’s conviction for attempted first-degree murder. Accordingly, we direct the trial court to correct its present clerical error and to enter a second amended judgment and sentence to show, consistent with the jury’s verdict and findings, that Torres was convicted of attempted first-degree murder with a weapon, a life felony.

AFFIRMED; REMANDED with directions to correct clerical error.

EDWARDS, J., concurs. EISNAUGLE, J., concurs in part and dissents in part.

5

CASE NO. 5D17-3786

EISNAUGLE, J., concurring in part and dissenting in part.

I agree that Torres’s judgment and sentence should be affirmed. However, I would not remand for the trial court to correct the judgment because neither party raised this scrivener’s error on appeal. Except in very limited circumstances,⁴ “an appellate court must confine its decision to the issues raised in the briefs.” Rosier v. State, 44 Fla. L. Weekly D1686 (Fla. 1st DCA June 28, 2019) (citations omitted). I would not bend this rule because, in my view, doing so would undermine an important principle of judicial restraint.