Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1288 _____________________________ DANIEL ANTHONY KELLOND, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. James C. Hankinson, Judge. March 26, 2020 RAY, C.J. Daniel Kellond appeals his judgment and sentence for battery by a detainee upon another detainee. Kellond contends that the trial court committed fundamental error by failing to hold a competency hearing and render a competency determination after the court had reasonable grounds to believe he was incompetent to proceed. Accepting the State’s concession of error, we reverse and remand for further proceedings. During pretrial proceedings below, the court directed counsel to schedule a competency hearing after the court received conflicting expert reports about Kellond’s competency to stand trial. Yet nothing in the record shows that a competency hearing took place or that the court ruled on Kellond’s competency. “Because an independent competency finding is a due-process right that cannot be waived once a reason for a competency hearing has surfaced, the trial court fundamentally err[s] in failing to make such a finding.” Zern v. State, 191 So. 3d 962, 965 (Fla. 1st DCA 2016); see also Blaxton v. State, 188 So. 3d 48, 48–49 (Fla. 1st DCA 2016) (reversing for further proceedings where the record did not reflect that “the requirements of judicial review and adjudication of competency were met below”). We thus reverse and remand for a retroactive determination of competency, if possible. Zern, 191 So. 3d at 965. If the court finds that Kellond was competent at the time of trial, it must enter a nunc pro tunc order memorializing that finding with no change in the judgment or sentence. Id. If a retroactive determination is not possible, or if the court finds that Kellond was incompetent, Kellond will be entitled to a new trial if and when competent to proceed. Id. REVERSED and REMANDED. LEWIS and OSTERHAUS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Kevin Alvarez, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Robert Charlie Lee, Assistant Attorney General, Tallahassee, for Appellee 2