This court recognizes that a defendant cannot waive a competency hearing, and that a waiver is prohibited by Florida Rule of Criminal Procedure 3.210. See Raithel v. State, 226 So.3d 1028 (Fla. 4th DCA 2017). However, the record again refutes the Defendant's allegations.
210 does it allow a waiver of the hearing in the first place, and case law clearly requires a competency hearing and order whenever a competency concern arises." Raithel v. State , 226 So. 3d 1028, 1032 (Fla. 4th DCA 2017) (citations omitted); see alsoMonte v. State , 51 So. 3d 1196, 1202 (Fla. 4th DCA 2011) ("[O]nce the trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing."). In support of his contention that the trial court was required to hold a competency hearing, Appellant focuses on the court's order requiring mental health experts evaluate Appellant and setting a date for a competency hearing.
In another group of cases, we "reversed and remanded" the defendant's conviction and sentence. See, e.g. , Charles v. State , 246 So.3d 436, 438 (Fla. 4th DCA 2018) ; Hernandez v. State , 246 So.3d 443, 445 (Fla. 4th DCA 2018) ; Pollock v. State , 246 So.3d 435, 436 (Fla. 4th DCA 2018) ; Dortch v. State , 242 So.3d 431, 433 (Fla. 4th DCA 2018) (en banc); Raithel v. State , 226 So.3d 1028, 1032 (Fla. 4th DCA 2017) ; Jackson v. State , 810 So.2d 545, 547 (Fla. 4th DCA 2002) ; see alsoCulbreath v. State , 903 So.2d 338, 340 (Fla. 2d DCA 2005). Finally, the Second District has taken a fourth approach, but one similar to Fowler .
210(b) requires the court to actually conduct the competency hearing. Id . at 1060-61. Trial counsel cannot implicitly or expressly waive the competency hearing. Raithel v. State , 226 So.3d 1028, 1032 (Fla. 4th DCA 2017) (rejecting the State's argument that defense invited the error); Deferrell , 199 So.3d at 1061. The right to the court's independent competency determination cannot be waived.
See alsoHawks v. State , 226 So.3d 892, 894 (Fla. 4th DCA 2017) (reversing a determination of competency because "[t]he record does not indicate whether the court reviewed the evaluations it ordered or made any findings based upon any evaluations," and "[m]erely asking counsel whether the Defendant [was] competent was not sufficient to satisfy Rule 3.210(b), which requires the court to hold a hearing to independently determine the Defendant's competency") (emphasis added); Raithel v. State , 226 So.3d 1028, 1031 (Fla. 4th DCA 2017) (reversing where trial court expressly declined to review competency evaluation during one hearing and "[t]he record fails to reveal that the competency evaluation was reviewed by the trial court , that a hearing was held, or an order determining competency was entered") (emphasis added); Hendrix v. State , 228 So.3d 674, 676 (Fla. 1st DCA 2017) (noting "reports of experts are ‘merely advisory to the [trial court], which itself retains the responsibility of the decision’ " (quoting Hunter v. State , 660 So.2d 244, 247 (Fla. 1995) ) ). The record in this case does not indicate the trial court did anything other than accept the parties' stipulation and the report's conclusions.
Accordingly, waiver or stipulation within competency proceedings has not precluded reversal in cases where the trial court has failed to hold an evidentiary hearing or to make an independent finding of competency. See, e.g. , Dougherty , 149 So.3d at 678 (holding defendant cannot stipulate to finding of competency because trial court must make independent determination of competency); Rumph v. State , 217 So.3d 1092, 1094–95 (Fla. 5th DCA 2017) (finding fundamental error where court accepted counsel's implicit stipulation to competency and record did not indicate that court reviewed expert reports before ruling); Raithel v. State , 226 So.3d 1028, 1032 (Fla. 4th DCA 2017) (reversing for competency hearing where defense counsel failed to request one and stating that invited error "does not apply in a competency context"). More akin to the issue at hand, however, the First District recently held that the fact that the right to a competency hearing is unwaivable "does not relieve [a defendant] of the responsibility to make evidentiary objections relating to the competency determination."