DAVID P. KEVER
v.
STATE OF FLORIDA
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Florida appellate court affirmed a violation of probation judgment, rejecting the defendant's challenge to the competency hearing while remanding for entry of a written order memorializing the oral competency determination.
A trial court's oral pronouncement of competency, supported by expert assessment and made in the presence of all parties, is valid but must be memorialized in a written order nunc pro tunc.
[1] A trial court's failure to enter a written order memorializing an oral competency determination requires remand for entry of a nunc pro tunc order, even where the oral pr…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted and challenged his violation of probation judgment on two grounds: inadequacy of a Faretta hearing and failure to conduct a co…
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PER CURIAM.
Appellant challenges the judgment and sentence for violation of probation raising two issues. We affirm Appellant’s claim of an inadequate Faretta * hearing without further comment. Appellant’s other claim is that after the court raised the issue of Appellant’s competency, the court failed to conduct a hearing on the issue. See Fla. R. Crim. P. 3.210(b). The record shows otherwise. The court appointed an expert to assess competency, received the report, and determined that Appellant was competent to proceed in a hearing where all parties were present. Appellant never challenged the adequacy of the hearing during any trial level
* Faretta v. California, 422 U.S. 806 (1975). proceedings or the briefs in this appeal. Accordingly, he waived any appellate challenge to the adequacy of the hearing. Rosier v. State, 44 Fla. L. Weekly D1686, 2019 WL 2710739 (Fla. 1st DCA June 28, 2019) (en banc). However, the case is remanded for the trial court to enter its written order nunc pro tunc to memorialize the court’s oral pronouncement of Appellant’s competency which occurred at the hearing held April 13, 2017. See Lucas v. State, 238 So. 3d 1290 (Fla. 1st DCA 2018); Merriell v. State, 169 So. 3d 1287 (Fla. 1st DCA 2015).
AFFIRMED; REMANDED with directions.
LEWIS, MAKAR, and BILBREY, JJ., concur.
_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
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Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Rasha Devonte Richardson v. State, 44 Fla. L. Weekly D1686 (Fla. 1st DCA 2019)
- Lucas v. State, 238 So. 3d 1290 (Fla. 1st DCA 2018)