Opinion
No. ZZ-254.
February 9, 1982.
Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
We reverse Stines' sentence of fifteen years for attempted sexual battery. Following unsuccessful treatment at North Florida Evaluation and Treatment Center in Gainesville in the mentally disordered sex offender program, Stines was returned to the court for sentencing.
At the sentencing hearing, Dr. Virzi, a court appointed psychiatrist, testified that Stines was incompetent to proceed and that he should be involuntarily committed for hospital treatment. Gene Tinsley, appellant's primary treating therapist at the center, testified that appellant's antisocial behavior at the treatment center made him inappropriate for treatment at the center. The trial court found appellant competent and sentenced him to fifteen years. The court apparently relied on medical reports filed two years earlier which found Stines competent at the time he was committed to the treatment center in Gainesville. Relying on the earlier medical reports was error in view of the uncontradicted expert medical evidence of incompetency presented by Dr. Virzi at the sentencing hearing. See Lane v. State, 388 So.2d 1022 (Fla. 1980).
Accordingly, we reverse and remand with instructions that the trial court conduct a competency hearing pursuant to Florida Rule of Criminal Procedure 3.740 and proceed in accordance therewith.
MILLS, WENTWORTH and THOMPSON, JJ., concur.