Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SHAWN DAVID EVANS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-3450 January 13, 2023 Appeal from the County Court for Pasco County; Anne M. Wansboro, Judge. Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee. ATKINSON, Judge. Shawn David Evans appeals from the judgment and sentence for criminal mischief and possession of less than twenty grams of marijuana entered following a bench trial. Because the record is devoid of an oral or written waiver of Evans' right to a jury trial, we must reverse for further proceedings. See Smith v. State, 9 So. 3d 702, 704 (Fla. 2d DCA 2009) ("A valid waiver of a criminal defendant's right to a jury trial requires either a written waiver signed by the defendant or the defendant's oral waiver after a proper colloquy with the trial judge." (citing Johnson v. State, 994 So. 2d 960, 963 (Fla. 2008))); accord Sinkfield v. State, 681 So. 2d 838, 838 (Fla. 4th DCA 1996) ("A defendant charged with a criminal offense may in writing waive a jury trial with the consent of the state (Fla. R. Crim. P. 3.260), or orally on the record after colloquy from which the court finds the waiver is voluntarily, knowingly and intelligently made." (citing Tucker v. State, 559 So. 2d 218, 219 (Fla. 1990))). The trial court also erroneously failed to hold a competency hearing and make a competency determination despite having entered an order appointing psychological experts. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition . . . and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing. Fla. R. Crim. P. 3.210(b) (emphasis added). "According to [r]ule 3.210(b) and case law, once the court has reasonable grounds to question the defendant's competency, the court has no choice but to conduct a hearing to resolve the question." Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016) (citing Brooks v. State, 180 So. 3d 1094, 1096 (Fla. 1st DCA 2015)). "At the competency hearing, the court must make its own independent finding of competence or incompetence." Zern, 191 So. 3d at 964 (citing Dougherty v. State, 149 So. 3d 672, 677 (Fla. 2014)). Where, as here, psychologists opined regarding the defendant's 2 competency but the trial court merely failed to conduct a hearing and make the determination, the court may make a retroactive determination as to the defendant's competency. See Nelson v. State, 336 So. 3d 744, 745 (Fla. 2d DCA 2021); King v. State, 263 So. 3d 244, 246 (Fla. 2d DCA 2019). Reversed and remanded. CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication. 3