Summary
finding of trial court's fundamental error in not adjudicating defendant's competency and remanding for nunc pro tunc proceeding
Summary of this case from Bowie v. StateOpinion
No. 1D18-4130
01-22-2020
Bryan Alexander HICKS, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Damaris Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Damaris Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
The trial court committed fundamental error in not holding a hearing and adjudicating Appellant's competency after finding reasonable grounds to believe that Appellant was incompetent and ordering a competency evaluation. See Sheheane v. State , 228 So. 3d 1178, 1180 (Fla. 1st DCA 2017). Accordingly, we reverse and remand for a retroactive determination of competency, if possible. Id. If the trial court finds that Appellant was competent at the time he entered his plea, it must enter a nunc pro tunc written order memorializing that finding with no change in the judgment. See Bowden v. State , 279 So. 3d 311, 313-14 (Fla. 1st DCA 2019). However, if the trial court cannot make a retroactive determination, it must allow Appellant to withdraw his plea and adjudicate his present competency to proceed. Id. at 314.
We acknowledge that Appellant entered a no contest plea in this case. Consistent with our decision in Sheheane , the Fourth District has held that, once the trial court has found reasonable grounds to believe that a defendant is incompetent, the failure to hold a competency hearing and adjudicate a defendant's competency prior to accepting a plea constitutes fundamental error that can be raised on direct appeal without the filing of a motion to withdraw plea. Dortch v. State , 242 So. 3d 431, 433 (Fla. 4th DCA 2018) (en banc), rev. granted , SC18-681, 2018 WL 3635017 (Fla. July 11, 2018). Pending the Florida Supreme Court's ultimate resolution of Dortch , we continue to adhere to this court's precedent.
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REVERSED and REMANDED .
Lewis, Winokur, and Jay, JJ., concur.