Elder v. State
| Decision Date | 26 April 2019 |
| Docket Number | 2D17-551,Case No. 2D13-3440 |
| Citation | 268 So.3d 995 |
| Parties | Veronica ELDER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
Veronica Elder challenges the trial court's "reinstated" judgment and sentence which was rendered on remand from this court's reversal of the judgment and sentence wherein we held that Elder's plea—the basis for the judgment and sentence—was invalid. See Elder v. State, 198 So.3d 827, 827-28 (Fla. 2d DCA 2016). We treat this appeal as a motion to enforce the mandate in Elder's previous case, Case No. 2D13-3440, and grant it. As a result, we dismiss the appeal in Case No. 2D17-551.
In October 2011, Elder was charged with attempted murder of a law enforcement officer, obstruction of an officer with violence, fleeing and attempting to elude, providing a false name to a law enforcement officer, and driving with a suspended or revoked license. A competency evaluation was ordered in December 2011, and the trial court found Elder incompetent to proceed in January 2012.
In May 2012, the court entered an order for a competency evaluation; the court appointed Dr. Alberts and Dr. Blitch to evaluate Elder. Both doctors' reports indicated that as of May 2012, Elder was competent. In July 2012, at what appears to have been a status hearing, defense counsel advised the court that Elder The court made no independent determination regarding Elder's competency but did request that defense counsel provide a proposed order finding Elder competent. No such order was entered.
In June 2013, more than one year after the competency evaluations had been completed, Elder entered a guilty plea to the charges in exchange for a sentence of eighteen years in prison on the attempted murder charge, five years in prison on the obstruction and fleeing charges, and time served on the remaining two charges.
Elder filed a notice of appeal of her judgment and sentence, arguing that the trial court erred in accepting her plea without first adjudicating her competent to proceed. See Elder, 198 So.3d at 827. Because retrospective competency determinations may be made under certain circumstances, see Dougherty v. State, 149 So.3d 672, 679 (Fla. 2014), this court relinquished jurisdiction during the pendency of the appeal in order to allow the trial court to assess Elder's competency at the time she entered the plea.
Although not addressed in the original Elder opinion, during the relinquishment period this court granted multiple requests from the trial court for extensions of time in order to evaluate Elder's competency at the time of the plea. The trial court appointed four doctors to conduct competency evaluations of Elder, specifically requesting then-current competency determinations and determinations as of the time of the plea, June 2013.
In January 2016, the trial court rendered an order finding Elder incompetent at that time and finding that it was unable to determine Elder's competency retrospectively to the time of her plea:
(Emphasis added.)
In our opinion reversing Elder's judgment and sentence, this court stated that "[b]ased on the doctors' evaluations, the trial court found that Elder is presently incompetent and that it is not possible to determine her competency retroactively." Elder, 198 So.3d at 827. We then concluded that "[b]ecause Elder was not adjudicated to be competent at the time she entered her plea, her plea was invalid," and we reversed and remanded "for further proceedings or such other action as may be appropriate." Id. at 827-28 (emphasis added). The original Elder opinion therefore necessitated the vacatur of the judgment because Elder's plea was held to be invalid; Elder had not been adjudged competent at the time of the plea and a nunc pro tunc determination of competency could not be made. Our "remand for further proceedings or such other action as may [have] be[en] appropriate" was necessary in light of Elder's incompetency to proceed at that time. The opinion issued March 9, 2016. Id. at 827.
Following remand from this court, hearings were held on March 23, 2016, and April 22, 2016. The transcript of the March 23 hearing indicates that the prosecutor believed that the retrospective competency issue was still under consideration by the trial court and that the trial court could send an order to this court for "directions as to how to proceed with [Elder] now because she's incompetent [again]." The prosecutor suggested that the trial court ask this court to "correct" the opinion. The trial court, however, decided to set a hearing "to get into this in more details [sic] because this is a mess." Defense counsel inquired as to what the hearing would address because the retrospective competency issue had already been determined by this court in the opinion reversing Elder's judgment and sentence.
At the April 22 hearing, the prosecutor argued that the testimony of Mr. Richardson, Elder's former counsel, could impact the trial court's determination of retrospective competency. Because Mr. Richardson was present at the hearing, the court entertained his testimony. Mr. Richardson testified, over many objections by defense counsel, that Elder appeared competent to him during his representation of her in 2013. He agreed that he had not presented an order of competency to the court and that he did not check the record to determine whether an order adjudicating Elder competent had been rendered. Mr. Richardson stated that he had worked in Puerto Rico from August 2013 through September 2015. His testimony established that he was present in Florida for at least four months prior to the trial court's order advising this court that a retrospective competency determination could not be made.
Following Mr. Richardson's testimony, the court and the attorneys discussed what could be done, given this court's opinion. Defense counsel asserted that our ruling was the law of the case, while the prosecutor suggested that the trial court send this court a request for reconsideration in light of Mr. Richardson's testimony.1 Defense counsel pointed out that there had been multiple hearings between Mr. Richardson's return to Florida and the court's order in January 2016 at which Mr. Richardson could have testified had the attorneys handling the case called upon him to do so.
Ultimately, because the prosecutor, defense counsel, and the court believed Elder to be then incompetent, the trial court ordered Elder to the State hospital. The court also set a status hearing to address the retrospective competency issue. After the status hearing, on June 24, 2016, the court entered the "Order Retrospectively Finding Defendant Competent; and Order Reinstating Judgment and Sentence." The June order states that the matter was before the court to address Elder's competency at the time she entered a guilty plea "pursuant to an order from the Second District." It also states that this court "relinquished jurisdiction to [the trial court] to address [Elder's] competency at the time she entered her plea." The order goes on to provide that "new evidence regarding [Elder's] competency has recently come to light, which neither [the trial court] nor the Second District had the benefit of considering when issuing its previous rulings." The court found that because "retrospective competency can be established through lay witness testimony, and Mr. Richardson provided such testimony at the April 22, 2016, evidentiary hearing ... the court is now convinced that [Elder] was in fact competent when she entered her plea on June 11, 2013." The court acknowledged that the experts were unable to make a retrospective competency determination.
The order concludes with the finding that "[j]ustice would not be served if [Elder] were to benefit from the fact that her lawyer indicated to the presiding judge that he was going to submit a proposed order finding her competent, but failed to do so."2 The court then purported to reinstate the judgment and sentence based upon the June 2013 plea agreement. At the time of "reinstatement," Elder remained incompetent.
Elder moved for reconsideration of the order finding her retrospectively competent. The motion alleged that Mr. Richardson's testimony was insufficient evidence upon which to base a competency determination and that his testimony violated attorney-client privilege. A hearing was held on January 6, 2017, at which the court denied the motion for reconsideration without...
To continue reading
Request your trial
-
Ramsay v. State
...n.1 (Fla. 1st DCA 1995).In other cases, a new appeal is treated as a motion to enforce mandate in the original case. Elder v. State , 268 So. 3d 995, 996 (Fla. 2d DCA 2019) ; Gomez , 247 So. 3d at 593 ; Bleakley v. Bleakley , 744 So. 2d 1019, 1021 (Fla. 4th DCA 1997). But we have also enfor......
-
Gursky v. State
...Washington , 162 So. 3d at 289 (quoting Duncan v. State , 115 So. 3d 1121, 1121 (Fla. 1st DCA 2013) ); see also Elder v. State , 268 So. 3d 995, 1001 (Fla. 2d DCA 2019) (recognizing that although expert opinions are advisory, "we have found no case where the court independently determined c......
- Williams v. State