Dortch v. State

• Decision Date: 04 April 2018
• Docket Number: Nos. 4D16–2815,4D16–2816,s. 4D16–2815
• Citation: 242 So.3d 431
• Parties: Vernson Edward DORTCH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

242 So.3d 431

Vernson Edward DORTCH, Appellant,

v.STATE of Florida, Appellee.

Nos. 4D16–2815

4D16–2816

District Court of Appeal of Florida, Fourth District.

[April 4, 2018]

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

Per Curiam.

Competency and the requisite procedure to address the issue lie at the heart of this appeal. The defendant appeals his judgment and sentence after entering a nolo contendere plea. He argues the trial court erred in failing to hold a competency hearing and failing to enter an order on the issue prior to accepting his plea. We agree and reverse.

The State charged the defendant with possession of a firearm by a felon, dealing in stolen property, and giving false information to a pawnbroker. His attorney filed a written motion for a competency examination, pursuant to Florida Rule of Criminal Procedure 3.210(b). The motion indicated there were "reasonable grounds to believe" the defendant was incompetent, but did not articulate specific facts concerning the defendant's mental state. The motion indicated the defendant waived the required twenty-day hearing.

The trial court granted the motion and appointed an expert. The order included language reiterating the defendant's waiver of the hearing. It does not appear that an examination or a hearing on competency ever took place.

While incarcerated, the defendant was later charged with a new crime of aggravated assault by a detainee with a deadly weapon and introducing contraband into a county detention facility. His attorney did not move for a competency evaluation in the new case.

The defendant entered an open plea to both cases nearly a year after his initial arrest. The trial court accepted the plea and sentenced the defendant to ten years in prison. The defendant did not move to withdraw his plea. He now appeals the judgment and sentence in both cases.

He argues the trial court erred in failing to conduct a competency hearing, relying on Samson v. State , 853 So.2d 1116 (Fla. 4th DCA 2003). There, we held "[a]n individual adjudicated incompetent is presumed to remain incompetent until [ ] restored to competence." Id . at 1116.

Over the last several years, we have reviewed multiple cases involving the issue of competency. See, e.g. , Bain v. State , 211 So.3d 139 (Fla. 4th DCA 2017) ; Williams v. State , 178 So.3d 531 (Fla. 4th DCA 2015) ; R.C. v. State , 157 So.3d 458 (Fla. 4th DCA 2015) ; Burns v. State , 884 So.2d 1010 (Fla. 4th DCA 2004). Depending on the facts, procedural posture, and arguments made, our dispositions have varied, possibly giving the appearance of inconsistency at times. We write to clarify the law in this area.

One thing is certain: competency requires strict adherence to the Florida Rules of Criminal Procedure 3.210 – 212.

Dougherty v. State , 149 So.3d 672, 677–78 (Fla. 2014) ; Deferrell v. State , 199 So.3d 1056, 1060–61 (Fla. 4th DCA 2016). Once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, it must hold a hearing, and it must enter a written order on the issue. See Fla. R. Crim. P. 3.210(b), 3.212(b).¹ Failure to do so is fundamental error and requires reversal.

This means that to raise the issue of a failure to comply with Florida Rules of Criminal Procedure 3.210 – 212 on direct appeal, it is not necessary that a defendant first file a motion to withdraw plea under Florida Rule of Appellate Procedure 9.140(2)(A) in cases where the trial court has reasonable grounds to believe the defendant is incompetent and has ordered an examination. Indeed, the rules mandate a hearing and an order under such circumstances. This is true regardless of whether the defendant has previously been declared incompetent.² This mandate does not apply however if the trial court had no reasonable grounds to believe the defendant is incompetent.

To require a criminal defendant, who may be incompetent, to file a motion to withdraw a plea before raising the issue on appeal is unwarranted. If a defendant is incompetent, confining him to post-conviction relief, without the assistance of counsel, is not a remedy designed to do justice.

We therefore recede from our prior decisions in Burns , Williams , and R.C. to the extent they conflict with our holding. We certify conflict with the First, Third, and Fifth District Courts of Appeal in Pressley v. State , 227 So.3d 573 (Fla. 1st DCA 2017), Garcia–Manriquez , and Hicks .

Reversed and remanded for further proceedings consistent with this opinion. The trial court may determine the defendant's competence nunc pro tunc if possible. Hawks v. State , 226 So.3d 892, 894–95 (Fla. 4th DCA 2017). If the trial court cannot do so, the judgment and sentence should be vacated and the case set for trial.

Reversed and Remanded .

Gerber, C.J., Warner, Gross, Taylor, May, Damoorgian, Ciklin, Levine, Conner, Klingensmith, and Kuntz, JJ., concur.

Forst, J., concurs specially with opinion.

Forst, J., specially concurring.

I join in the court's opinion to reverse and remand this case, on the basis that the trial court's failure to afford Appellant with a competency hearing constituted fundamental error. In doing so, we are breaking from our own precedent, and our decision conflicts with the position taken by both the Third and Fifth District Courts of Appeal (as well as two First DCA opinions). This specially concurring opinion is written with the goal of providing a more complete picture of the legal landscape with respect to this issue and this court's resolution.

At the time that Appellant entered his nolo contendere plea, he had not previously been adjudicated incompetent to stand trial. His judgment and sentence were entered following his plea, and he did not subsequently file a motion to withdraw plea prior to the instant appeal. Under similar circumstances ("reasonable grounds" to believe the defendant was incompetent, no prior adjudication of incompetence, a plea deal, no motion to withdraw), this court and others have found no fundamental error and affirmed the lower court's disposition or dismissed the appeal for lack of jurisdiction. See, e.g. , Burns v. State , 884 So.2d 1010, 1011 (Fla. 4th DCA 2004) (affirmed); Hicks v. State , 915 So.2d 740, 741 (Fla. 5th DCA 2005) (dismissed).

Recently, this court, in Bain v. State , 211 So.3d 139 (Fla. 4th DCA 2017), and Hawks v. State , 226 So.3d 892 (Fla. 4th DCA 2017), and our sister district courts in at least three recent opinions have, explicitly or implicitly, found fundamental error and reversed and remanded for a competency hearing, notwithstanding the lack of a previous adjudication of incompetence. These recent opinions provide the impetus to re-examine this issue and provide guidance to the courts for handling this issue in the future.

Factual Background

The pertinent factual background is presented in the court's opinion. Despite the trial court's ordering the appointment of an expert "for the purpose of determining competence," there is no indication an examination was ever scheduled by either party or the trial court, and the latter never held a hearing to determine Appellant's competency.

Legal Background

Appellant argues that, notwithstanding his failure to file a motion to withdraw his no contest plea to the two charges, this court should hold that the trial court reversibly erred by failing to conduct a competency hearing once it had "reasonable ground to believe that the defendant [wa]s not mentally competent to proceed." Fla. R. Crim. P. 3.210(b).

A. The Fourth DCA

In arguing that "Appellant is not foreclosed from relief because this appeal arrives from a judgment and sentence entered after an open plea," Appellant relies upon two opinions from this court that are factually distinguishable from the instant case as they involved defendants who had previously been adjudicated incompetent and there was no subsequent adjudication of competency prior to the defendant accepting a plea deal. In Samson v. State , 853 So.2d 1116 (Fla. 4th DCA 2003), we held that "[a]n individual adjudicated incompetent is presumed to remain incompetent until adjudicated restored to competence." Id. at 1116. Similarly, in Blackmon v. State , 23 So.3d 239 (Fla. 4th DCA 2009), we determined that, absent a competency hearing and a written order stating the defendant was restored to competence, the defendant "remained incompetent to proceed and his negotiated pleas and subsequent sentence must be reversed." Id. at 240.

By contrast, where the defendant had not previously been adjudicated incompe tent, but there were reasonable grounds to believe the defendant was incompetent, we have determined that, although "[a]n issue relating to the voluntary and intelligent nature of the plea falls within the limited class of issues which a defendant may raise on appeal from a guilty or no contest plea without having specifically reserved the right to do so," Burns v. State , 884 So.2d at 1013, "we do not deem such error ‘fundamental’ so as to obviate the need for filing a motion to withdraw in the trial court before attacking the voluntariness of the plea on appeal." Id. at 1014. We have followed this approach in other cases to affirm where, as distinct from Blackmon and Samson , the defendant had not previously been adjudicated incompetent. See Williams v. State , 178 So.3d 531, 532 (Fla. 4th DCA 2015) ; R.C. v. State , 157 So.3d 458, 458 (Fla. 4th DCA 2015).

As noted above, two recent opinions from this court run counter to the precedent whereby we reversed only in situations involving a prior finding of incompetence ( Samson and Blackmon ), and otherwise affirmed ( Burns , et al.). In Bain , the trial court failed to hold a competency hearing although it "had earlier ordered a competency evaluation." 211 So.3d at 139. We reversed and...