BRENDA FAY YANCY

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

BRENDA FAY YANCY,

Appellant,

v. Case No. 5D18-3544

STATE OF FLORIDA,

Appellee. ________________________________/

Opinion filed September 27, 2019

Appeal from the Circuit Court for Seminole County, Melissa D. Souto, Judge.

James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Judges are tasked with making independent determinations of competency. Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014). That is the sole issue raised in this appeal; Brenda Yancy argues that the record is insufficient to demonstrate that the trial court conducted an independent assessment of her competency. We agree and remand for a nunc pro tunc competency determination, if possible. The facts in Dougherty are similar to the facts of this case. Both Dougherty and Yancy were found incompetent to proceed and were committed for treatment. Id. at 673–

2 74. Purportedly restored to competency, both were returned to face their pending charges. Id. at 674. Dougherty’s counsel, relying on three experts’ evaluations, stipulated to Dougherty’s competency to proceed. The trial court, without more, responded, “Very good. We’ll put it on just the regular docket sounding then.” Id. Yancy’s case proceeded in a similar fashion: DEFENSE COUNSEL: [W]e have an issue we have to address. The competency, she was never formally found competent to proceed since being returned from the state hospital. We’ve asked to introduce Defendant’s Exhibit A into evidence, it’s the evaluation, I’m not sure if Your Honor has previously read it finding her competent to proceed. I’ve spoken to her on numerous occasions since she was brought back [from] the state hospital. It’s my opinion as well that she’s able to understand the legal process at this point.

STATE: We’d stipulate to that evaluation, Your Honor.

THE COURT: All right. So it will be entered as I guess Defense’s Exhibit One.

STATE: We’d agree, Judge. We’d ask the court to find her competent to proceed at this point.

DEFENSE COUNSEL: Yes, ma’am.

THE COURT: No objection. So I’ll find her competent to proceed at this time.

“Generally, a proper hearing to determine whether competency has been restored after a period of incompetence requires ‘the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.’” Dougherty, 149 So. 3d at 677 (quoting Jones v. State, 125 So. 3d 982, 983–84 (Fla. 4th DCA 2013)). Nonetheless, “where the parties and the judge agree, the trial Court may decide the issue

3 of competency on the basis of the written reports alone.” Id. at 678 (quoting Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971)). In Dougherty, the Florida Supreme Court held that the trial court deprived Dougherty of his due process right to a fair trial by failing to observe the procedures outlined in Rules 3.210ꟷ3.212. Id. at 679. It explained that a court’s discretion to determine a defendant’s competence in written reports alone is qualified with a requirement that the trial court make an independent determination of competency, noting that “written reports are advisory to the trial court, ‘which itself retains the responsibility of the decision.’” Id. at 678 (quoting McCray v. State, 71 So. 3d 848, 862 (Fla. 2011)). It is unclear how a trial court should make an independent determination of competency. Certainly, the first step should be reviewing the expert’s report. However, the record often does not provide a clear picture of whether the trial court has done so. Such is our predicament in this case. Because we are unable to ascertain from the record on appeal whether the trial court read the expert’s evaluation and made an independent determination of Yancy’s competency, we are required to remand for a nunc pro tunc determination of such. See Bynum v. State, 247 So. 3d 601, 604 (Fla. 5th DCA 2018). If the trial court is unable to make such a determination, a new trial will be necessary.¹ Id.

REMANDED.

WALLIS, J., and JACOBUS, B.W., Senior Judge, concur.