Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2313 _____________________________ AERIAN CALVIN ROULHAC- LAWRENCE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Bay County. Christopher N. Patterson, Judge. October 13, 2020 PER CURIAM. Aerian Calvin Roulhac-Lawrence appeals his judgment and sentence after entering a nolo contendere plea to charges of resisting an officer with violence, battery on a law enforcement officer, and trespass after warning. Roulhac-Lawrence claims that the trial court committed fundamental error by failing to make an individualized finding as to his competency before the trial court accepted his plea. We agree and reverse. Sheheane v. State, 228 So. 3d 1178, 1180 (Fla. 1st DCA 2017). * *We acknowledge that Roulhac-Lawrence entered a no contest plea in this case. Consistent with our decision in Sheheane, the On remand, the trial court must address competency. Id. at 1181. If the evidence that existed previously supports a finding that Roulhac-Lawrence was competent at the time of the plea, the trial court may decide competency, nunc pro tunc, with no change in the judgment. Id. However, if the trial court cannot make a retroactive competency determination or it finds that Roulhac- Lawrence is incompetent, the trial court must vacate his plea and set the case for trial. Zern v. State, 191 So. 3d 962, 965 (Fla. 1st DCA 2016). REVERSED and REMANDED with directions. LEWIS and M.K. THOMAS, JJ., concur; WINOKUR, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ WINOKUR, J., concurring. I agree that we are obligated to follow our precedent that permits one to challenge on appeal the court’s failure to properly follow the rules of procedure when making a competency determination, even when the person has entered a nolo contendere plea. While this practice has been permitted in numerous cases in this district and others, I note that some cases Fourth District has held that, once the trial court has found reasonable grounds to believe that a defendant is incompetent, the failure to properly 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. 2 have disallowed this practice because this type of appeal is not permitted by Florida Rule of Appellate Procedure 9.140(b)(2). The inconsistency of decisions in this area was well-documented in Judge Forst’s special concurrence in 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) (Forst, J., specially concurring). I need not recount Judge Forst’s survey of cases here. I write only to make an observation related to the conclusion that a defendant may appeal this particular issue because it raises an issue of “fundamental error.” Rule 9.140(b)(2) does not contain a “fundamental error” exception. The rule states that a defendant “may not appeal from a guilty or nolo contendere plea except as follows,” and lists several circumstances where appeal is permitted. Fla. R. App. P. 9.140(b)(2)(A). The first involves reserving the right to appeal a specific issue. Fla. R. App. P. 9.140(b)(2)(A)(i). A defendant pleading guilty or nolo contendere “may otherwise directly appeal only” the grounds listed in the next subdivision. Fla. R. App. P. 9.140(b)(2)(A)(ii). The rule does not create a list of suggested reasons a defendant might wish to appeal following a guilty plea; it prohibits appeal unless it involves an issue specifically indicated in the rule. I disagree that the structure of the rule permits us to add to the rule other grounds that may be appealed simply by calling the alleged error “fundamental.” If the Florida Supreme Court wished to include “fundamental error” as a ground that may be appealed following guilty plea, it could have done so, but did not. The mere fact that an error is characterized as fundamental does not mean that it may always be raised on direct appeal, regardless of applicable procedural rules. For instance, an appellate court will not consider a fundamental sentencing error unless the appellant has filed a motion in the trial court under Florida Rule of Criminal Procedure 3.800(b). See Brannon v. State, 850 So. 2d 452, 456 (Fla. 2003) (holding that “the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal”). I see no reason this principle should not apply in the context presented here. A defendant wishing to assert a fundamental sentencing error has other procedural means to raise this issue without asserting it for 3 the first time in a direct appeal, by filing a Rule 3.800(b) motion. Likewise, a trial court’s failure to comply with the procedural requirements for a competency determination prior to a guilty plea can be asserted by means other than raising it for the first time in a direct appeal. This issue may be raised by motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(l), or by motion to vacate on the ground that the plea was involuntary pursuant to Florida Rule of Criminal Procedure 3.850(a)(5). As such, I see no reason to ignore the plain requirements of Rule 9.140(b)(2) and permit an additional ground for appellate relief merely because the error can be characterized as “fundamental.” * In any event, unless and until the Florida Supreme Court addresses this issue in Dortch, we are bound to remand the case, as ordered in the majority opinion. _____________________________ Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant. * In making this point, I repeat an observation made in Rosier v. State, 276 So. 3d 403, 412 n.7 (Fla. 1st DCA 2019) (Winokur, J., concurring). That is, Dougherty v. State, 149 So. 3d 672 (Fla. 2014), rules that a court fundamentally errs when it adjudges a defendant competent to proceed without following the procedures indicated in Florida Rules of Criminal Procedure 3.210 and 3.212. While it is undeniable that a defendant has a fundamental right not to proceed while incompetent, Dougherty does not require that before calling the error “fundamental.” Instead, it rules that fundamental error is present when the defendant demonstrates only that “the trial court did not properly comply with Rule 3.212 regarding proper findings of competency, which could possibly, but not necessarily, lead to an unconstitutional result.” Rosier, 276 So. 3d at 412 (Winokur, J., concurring). Here, Roulhac-Lawrence does not claim on appeal that he was incompetent to proceed, only that the trial judge did not properly adjudge him competent. This fact should be considered when holding that an appellant deserves to appeal regardless of the rules because the error is “fundamental.” 4 Ashley Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee. 5