Opinion
No. 1D21-2424
06-22-2022
Benjamin DIAMOND, Appellant, v. STATE of Florida, Appellee.
Kevin Alvarez of the Law Office of Kevin Alvarez, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
Kevin Alvarez of the Law Office of Kevin Alvarez, P.A., Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Benjamin Diamond raises two issues on appeal from his judgment and sentence for battery on an inmate. As to his first issue, we conclude that the trial court did not abuse its discretion by conducting only a preliminary Nelson inquiry at Diamond's June 17, 2021, plea hearing and not a full Nelson hearing. See generally Thompson v. State , 174 So. 3d 453, 455–56 (Fla. 1st DCA 2015) (discussing trial court's duty to conduct preliminary Nelson inquiry (quoting Jackson v. State , 33 So. 3d 833, 835 (Fla. 2d DCA 2010) ).
Nelson v. State , 274 So. 2d 256 (Fla. 4th DCA 1973).
As to the second issue, we accept the State's concession that this cause must be remanded to the trial court for a competency hearing and determination. The record reflects the trial court ordered a competency evaluation, which was completed, but did not hold the requisite hearing or make the independent competency determination required by Florida Rule of Appellate Procedure 3.210(b). See also Zern v. State , 191 So. 3d 962 (Fla. 1st DCA 2016) (holding that a court, once it has "reasonable grounds to question the defendant's competency, [must] conduct a hearing to resolve the question"). "If a court fails to hold a competency hearing under these circumstances, reversal is required." Johnson v. State , 264 So. 3d 259 (Fla. 1st DCA 2019) (citing Brooks v. State , 180 So. 3d 1094, 1095 (Fla. 1st DCA 2015) ).
Accordingly, we reverse and remand to the trial court to conduct a competency hearing. The trial court may make a nunc pro tunc determination if it finds that Diamond was, in fact, competent to stand trial. If the trial court cannot make such a nunc pro tunc determination, then it shall grant a new trial. See Johnson , 264 So. 3d at 260.
AFFIRMED , in part, REVERSED , in part, and REMANDED with instructions.
Osterhaus, Bilbrey, and Winokur, JJ., concur.