JUNIOR JOSEPH
v.
STATE OF FLORIDA

Fla. 5th DCA | 2022-11-14
No. 22-1656
Florida District Court of Appeal, Fifth District (2022)

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Holding

A trial court's nunc pro tunc order adjudicating a defendant competent to proceed is not independently appealable under Florida Rule of Appellate Procedure 9.140(b).

Headnotes

[1] An order finding a defendant competent to proceed is not independently appealable under Florida Rule of Appellate Procedure 9.140(b).

[2] A nunc pro tunc order on competency, without re-entry of judgment and sentence, does not create an independent right to appeal.

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Facts & Procedural History

On remand from a prior habeas corpus petition, the trial court issued a retroactive nunc pro tunc order finding Joseph competent to proceed but failed…

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Topics
Competency To Proceed Nunc Pro Tunc Order Belated Appeal

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Opinion of the Court

PER CURIAM. In this successive belated appeal petition, Junior Joseph seeks review of the trial court’s order finding him competent to proceed.1 Previously, this Court granted Joseph’s habeas corpus petition and ordered the trial court to

Footnotes
1 The first petition was dismissed. either make a retroactive finding of competency or grant Joseph a new trial. See Joseph v. State, 244 So. 3d 416, 416–17 (Fla. 5th DCA 2018) (citing Camacho v. State, 225 So. 3d 272 (Fla. 4th DCA 2017)). In granting that petition, we observed that the trial court appointed experts to evaluate Joseph and held a competency hearing, but failed to enter an order adjudicating Joseph competent to proceed. Id. at 416. On remand, a written order on competency was retroactively rendered, but the trial court did not re-enter Joseph’s judgment and sentence. The trial court’s nunc pro tunc order finding Joseph competent is not independently appealable under Florida Rule of Appellate Procedure 9.140(b). Pamphile v. State, 260 So. 3d 1185, 1186 (Fla. 1st DCA 2018) (“On remand, the circuit court issued a nunc pro tunc order on the competency issue, but did not re-enter the judgments and sentences. An order on competency is not independently reviewable under rule 9.140(b), Florida Rules of Appellate Procedure.”). The circumstances of this case are identical to those in Pamphile. As such, we dismiss Joseph’s successive petition for belated appeal without prejudice to Joseph to petition the trial court for re- entry of the original judgment and sentence so that Joseph may obtain review of that order. See id. DISMISSED. COHEN, TRAVER and SASSO, JJ., concur.

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