Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3314 _____________________________ DANIEL K. MAXWELL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Wakulla County. James O. Shelfer, Judge. January 6, 2021 PER CURIAM. Daniel Maxwell appeals his judgment and sentence after being convicted of assault, battery by strangulation, and false imprisonment. He raises numerous issues on appeal; only one of which warrants discussion. The remaining issues are affirmed without further comment. On appeal, Maxwell argues the trial court erred in allowing him to proceed to trial without first making a competency determination. We agree and reverse accordingly. Pursuant to Florida Rule of Criminal Procedure 3.210(a), no material stage of a proceeding may proceed against a defendant who is mentally incompetent. When the trial court has reasonable grounds to question a defendant’s competency, the trial court is required to conduct a competency hearing. Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016); Brooks v. State, 180 So. 3d 1094 (Fla. 1st DCA 2015); see also Cochran v. State, 925 So. 2d 370, 373 (Fla. 5th DCA 2006) (“[O]nce the trial court enters an order appointing experts upon a reasonable belief that the defendant may be incompetent, a competency hearing must be held.”). “At that point, the court has a duty to make an independent determination about the defendant’s competency, and it must also enter a written order on competency if its finds that the defendant is competent to proceed.” Pearce v. State, 250 So. 3d 791, 792 (Fla. 1st DCA 2018) (citing Dougherty v. State, 149 So. 3d 672, 677–78 (Fla. 2014)). “Not even the defendant’s own stipulation to competency relieves the trial court of the obligation to hold a competency hearing and adjudicate the issue of competency if there are reasonable grounds to question competency.” Walker v. State, 237 So. 3d 1162, 1164 (Fla. 1st DCA 2018) (citing Dougherty, 149 So. 3d at 677–678). The State argues that the trial court based its competency determination on written reports, which is permitted when agreed to by the parties. See Dougherty, 149 So. 3d at 677–78 (“[W]here the parties and the judge agree, the trial court may decide the issue of competency on the basis of the written reports alone.”). However, the State’s contention is not supported by the record. Rather, the record shows that the trial court based its finding of competency on the parties’ stipulation, which is improper. See Walker, 237 So. 3d at 1164. Maxwell had previously been found incompetent to stand trial. He was admitted to Florida State Hospital for treatment. The records from Florida State Hospital releasing Maxwell and finding him competent were not part of the record. Because the trial court did not make a proper competency determination, we remand the case for further proceedings. On remand, the trial court shall hold a hearing to determine whether competency can be retroactively determined. Sheheane v. State, 228 So. 3d 1178, 1181 (Fla. 1st DCA 2017). If the evidence that existed previously supports a finding that Maxwell was competent at the time of trial, the court may make a determination of competency, nunc pro tunc, with no changes in the judgment and enter a written order accordingly. Id.; see also Brooks, 180 So. 3d at 1096. However, if the trial court is unable to make a retroactive 2 competency determination or if its finds Maxwell was incompetent, Maxwell’s judgment and sentence must be vacated. Id. AFFIRMED in part, REVERSED in part, and REMANDED. MAKAR, OSTERHAUS, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 3