Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STEVEN WASHINGTON, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1984 January 6, 2023 Appeal from the County Court for Manatee County; Melissa Gould, Judge. Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee. ORDER RELINQUISHING JURISDICTION PER CURIAM. Steven Washington appeals the trial court's order withholding adjudication for two counts of violating a county noise ordinance and the resulting fine, which the trial court converted into community service hours. See Manatee County, Fla., Code of Ordinances ch. 2-21, § 2-21- 34 (2019) available at https://library.municode.com/fl/manatee _county/codes/code_of_ordinances?nodeId=PTIIMACOCOOR_CH2- 21MIPROF. It is unclear from our record whether Mr. Washington or his counsel was present at the competency hearing for Mr. Washington or whether the trial court made an independent determination of competency. Therefore, we relinquish jurisdiction to the trial court for further proceedings consistent with this order. I. Background Omar Abdelghany appeared as defense counsel in July 2020. He moved to withdraw in December 2020. Our record contains no trial court order ruling on the motion. Joshua Monteiro appeared as defense counsel in August 2020 and moved for a competency evaluation in October 2020. In December 2020, the trial court appointed Dr. Yamout to evaluate Mr. Washington and scheduled a competency hearing for January 7, 2021. The trial court stated the following in its order: WITHIN TWO BUSINESS DAYS OF RECEIPT OF ALL OF THE DOCTOR'S REPORTS, THE ATTORNEYS SHALL CONFER WITH EACH OTHER AND DETERMINE IF AT THE COMPETENCY HEARING THERE WILL BE A STIPULATION TO ANY REPORT IN LIEU OF LIVE TESTIMONY, WHETHER THE DOCTOR'S PRESENCE AT THE HEARING WILL BE REQUIRED, OR WHETHER TELEPHONIC TESTIMONY WILL BE AGREED TO. THE ATTORNEYS SHALL BE RESPONSIBLE FOR SECURING THE TESTIMONY OF THE WITNESSES AT THE COMPETENCY HEARING IF REQUIRED. THE ATTORNEYS SHALL INFORM THE JUDGE'S JUDICIAL ASSISTANT BY EMAIL WITH COPY TO OPPOSING COUNSEL AT LEAST TWO BUSINESS DAYS PRIOR TO THE HEARING AS TO THE RESULT OF THIS DISCUSSION. (Emphasis added.) No such email is in our record; neither party mentioned an email on appeal. Mr. Monteiro represented Mr. Washington at the January 7, 2021, hearing. The trial court continued the January hearing to March 30 because Mr. Monteiro was unable to complete the competency 2 evaluation. Mr. Monteiro specifically requested the March 30 date because he already had to be in court that day. The progress docket for the competency hearing stated "Defendant Present by Attorney" four times and "Defendant Not Present" one time. In contrast, the hearing transcript listed only the prosecutor under "Appearances"—no defense counsel. At the hearing, an "unidentified male" said "Steven Washington," without additional context, and asked for a June trial. The trial court scheduled the trial for June 7, stated that the "unidentified male" would get notice, and then stated, "Okay. Thank you. Next?" There was a pause in the recording. Afterwards, the trial court stated that it had a report for Mr. Washington, an "unidentified female" said the report was by Mr. Abdelghany, and the trial court said it would "do that one later." There was another pause in the recording. Later, an "unidentified female" announced the case for Mr. Washington and claimed that Mr. Abdelghany represented Mr. Washington. Again, a pause in the recording. The trial court mentioned there was a report for Mr. Washington, asked if it was on April 1, and stated there were "lots of cases." The trial court asked who represented Mr. Washington; the prosecutor stated it was Mr. Monteiro. The trial court then stated: "And has this person been found competent? Let's see. All right, I see that he's competent to proceed. I'm going to ask that the Clerk file this with a confidential thing." The trial court never entered a written competency order. We ordered the clerk to supplement the record with the document(s)—presumably, the expert report—that the trial court asked the clerk to file "with a confidential thing" at the March 30, 2021, hearing. The clerk certified that "the competency evaluation report . . . 3 does not exist in the record." In response to our order, Mr. Washington later supplemented the record with a March 12, 2021, competency evaluation by Dr. Yamout. II. Discussion Mr. Washington asserts for the first time on appeal that the competency proceeding was improper because the record does not show that (1) he and defense counsel attended the hearing, (2) the parties agreed to rely solely on the expert report, (3) the trial court made an independent competency finding, or (4) the trial court entered a written competency order.1 The State contends that Mr. Washington failed to establish fundamental error because the record reflects that defense counsel was present and "the trial court was entitled to base its finding of competency on the detailed report if the parties agreed." We review a challenge to the adequacy of a competency proceeding raised for the first time on appeal for fundamental error. Johnson v. State, 266 So. 3d 234, 235 (Fla. 2d DCA 2019) (citing Hendrix v. State, 228 So. 3d 674, 675 (Fla. 1st DCA 2017)). "Error is fundamental if it goes to the foundation of a case and amounts to a denial of due process." Id. at 236 (quoting Hendrix, 228 So. 3d at 676). "Once a reason for a competency hearing has arisen, the defendant has a due process right to an independent finding of competency." Golloman v. State, 226 So. 3d 332, 335 (Fla. 2d DCA 2017) (citing Zern v. State, 191 So. 3d 962, 965 (Fla. 1st DCA 2016)). Neither the trial court nor the parties can waive the right to an independent competency determination; "a trial court's failure to make such a finding constitutes 1 Strikingly, Mr. Monteiro did not raise any objections to the competency proceeding below—not even when he called Mr. Washington to testify at trial. 4 fundamental error." Id. (citing Zern, 191 So. 3d at 965). So, the defendant cannot stipulate to the ultimate issue of competency as it would improperly absolve the trial court from making its independent determination of competency. Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014). "However, when the parties agree, the trial court 'may decide the issue of competency on the basis of written reports alone.' " Dubon v. State, 295 So. 3d 259, 275 (Fla. 4th DCA 2020) (quoting Dougherty, 149 So. 3d at 679). A defendant also has the due process right to be present at the competency hearing. See Smith v. State, 295 So. 3d 353, 355 (Fla. 5th DCA 2020) ("[T]here is no question that Smith was denied his constitutional right to due process of law when the trial court failed to afford him an opportunity to be present at his competency hearing."); cf. Carrion v. State, 235 So. 3d 1051, 1054 (Fla. 2d DCA 2018) ("Mr. Carrion must be present at the new competency hearing."); Sheheane v. State, 228 So. 3d 1178, 1181 (Fla. 1st DCA 2017) (same). Here, our record is contradictory and unclear whether defense counsel was present at the March 30, 2021, competency hearing or whether both parties agreed that the trial court could decide the issue of competency based solely on the expert's written report. There is no indication that Mr. Washington was ever present at the hearing or why he was not present. We cannot discern from the record whether defense counsel was present; the "unidentified male" never identified himself and never spoke again after the trial court scheduled the case for trial. Notably, the "unidentified male" did not speak up when the trial court asked who represented Mr. Washington. At one point, a female claimed a different attorney represented Mr. Washington without correction. The 5 transcript did not list any defense counsel present for Mr. Washington at the competency hearing. The record also fails to show that the trial court made an independent determination on Mr. Washington's competency. See generally Dubon, 295 So. 3d at 275 ("Even if it is simply 'unclear whether the trial court made an independent determination' of the defendant's competency, the case must be remanded for further proceedings." (quoting Pittman v. State, 254 So. 3d 494, 497 (Fla. 4th DCA 2018))). Based on Mr. Washington's response to our order to supplement the record, the trial court presumably saw the March 12, 2021, competency evaluation before stating that he was competent. Although the clerk certified that the document(s) that the trial court may have reviewed at the competency hearing was not in the record, it is impossible to tell from our record if the trial court made an independent determination of competency. Indeed, it is not even clear if Mr. Washington or defense counsel were present or if the parties agreed to allow the trial court to decide the issue of competency based on the written report alone.2 See Pittman, 254 So. 3d at 497 ("Although the record reflects that the trial court reviewed the expert's report and made the statement, 'Well, he's competent,' the trial court's finding of competency may have been based, at least in part, on appellant's stipulation to his own competency. On this record, it is impossible to tell 2 Because we do not know if Mr. Washington or his counsel was present, we cannot conclude that the parties implicitly agreed to rely on the evaluation alone. Cf. Charles v. State, 223 So. 3d 318, 330 (Fla. 4th DCA 2017) ("The parties' silence in the face of this clear opportunity to request either live testimony or additional competency evaluations demonstrates that the parties agreed to the trial court's procedure of deciding the issue of competency on the basis of Dr. Brannon's written report alone."). 6 whether the trial court truly made an independent determination of competency."); see also Dubon, 295 So. 3d at 275 ("[T]he record fails to reflect that the trial court made an independent determination of appellant's competency to proceed to trial. There was no agreement between the parties to allow the judge to decide the issue of competency on the basis of the written report alone. It is unclear from the record whether the trial court even reviewed the evaluation."). "Further, the trial court failed to enter a written order of competency—another indication 'that the trial court did not make an independent competency determination.' " Bylock v. State, 196 So. 3d 513, 515 (Fla. 2d DCA 2016) (quoting Shakes v. State, 185 So. 3d 679, 682 (Fla. 2d DCA 2016)). Accordingly, we relinquish jurisdiction for sixty days for a nunc pro tunc competency determination, if it is possible. Cf. Zurz v. State, 315 So. 3d 14, 15 (Fla. 4th DCA 2021) (remanding "for the trial court to hold a hearing and, if appropriate based on the record before it, make a nunc pro tunc determination by written order that Appellant was competent at the time of trial" where the trial court stated at a hearing—where Appellant and defense counsel were not present—that the report found Appellant competent); Dubon, 295 So. 3d at 275 ("[B]ecause 'it is impossible to tell whether the trial court truly made an independent determination of competency,' the case must be remanded for further proceedings." (quoting Pittman, 254 So. 3d at 497)); Pittman, 254 So. 3d at 497 ("Thus, because the parties did not agree to decide the issue of competency on the basis of the written report alone and because it is unclear whether the trial court made an independent determination of appellant's competency, we reverse and remand for a nunc pro tunc competency determination, if it is possible."). Such a retroactive determination may be possible in this case where, among other facts, Mr. 7 Washington testified at trial. See King v. State, 263 So. 3d 244, 246 (Fla. 2d DCA 2019) (holding that a retroactive competency determination "may be possible if 'there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing' " (quoting Dougherty, 149 So. 3d at 679)). The trial court shall hold a hearing and make a written determination as to whether it can make a nunc pro tunc competency determination. See Nelson v. State, 336 So. 3d 744, 745 (Fla. 2d DCA 2021) (explaining that "the appropriate remedy for this error is a retroactive determination of competency, if it is possible in a manner that assures due process" (citing King, 263 So. 3d at 246)); Carrion, 235 So. 3d at 1054 (explaining that when the trial court failed to make an independent finding of competency, "we [were] not compelled to vacate Mr. Carrion's judgment and sentence at this time" and relinquishing jurisdiction for the trial court to conduct a new competency hearing (citing Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971))). "At the end of the relinquishment period, counsel for the parties shall file a status report with this court to indicate the outcome of the competency hearing and to advise this court of the need for further proceedings," including supplementing the record. Nelson, 336 So. 3d at 745; Carrion, 235 So. 3d at 1054; see also Machin v. State, 267 So. 3d 1098, 1101-02 (Fla. 4th DCA 2019) (listing possible paths the trial court and parties may take on remand). Jurisdiction relinquished with directions. NORTHCUTT, KELLY, and LaROSE, JJ., Concur. Order subject to revision prior to official publication. 8