Holland v. State

• Decision Date: 07 April 1994
• Docket Number: No. 91-2789,91-2789
• Citation: 634 So.2d 813
• Parties: 19 Fla. L. Weekly D772 Joseph HOLLAND, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 813

634 So.2d 813

19 Fla. L. Weekly D772

Joseph HOLLAND, Appellant, v. STATE of Florida, Appellee.

No. 91-2789.

District Court of Appeal of Florida,

First District.

April 7, 1994.

James C. Banks, Sp. Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Joseph Holland appeals his convictions on counts for attempted first-degree murder, aggravated battery with a deadly weapon, display of a firearm during a felony, and kidnapping while armed. He raises two points on appeal, and we reverse on both.

Appellant's first point concerns the trial court's ruling on his competency to stand trial. The following facts are relevant to this point. Prior to trial, Appellant was adjudicated incompetent by three judges on three separate occasions. First, Judge Royce Agner rendered a "Finding of Incompetency and Order of Commitment to State Hospital" on November 18, 1987. Second, Judge Arthur Lawrence rendered a "Finding of Incompetency and Order of Commitment to State Hospital" on June 27, 1989. Finally, Judge Vernon Douglas rendered a "Finding of Incompetency and Order of Commitment to State Hospital" on July 31, 1990. On December 6, 1990, Judge Douglas entered an Appellant was tried and convicted, and during the sentencing hearing Appellant raised the issue of his previous incompetency. The court asked if the attorneys could point to an order restoring Appellant's competency. Defense counsel stated that he was not aware of such an order and never attended a competency hearing because he knew that Appellant had been found competent by the doctors at Chattahoochee and did not want to contest such a determination. The prosecutor affirmed that this was the state's understanding. However, the court replied that such a determination would have to be made by the court pursuant to Florida Rule of Criminal Procedure 3.212(c)(5). The attorneys on both sides had conflicting or vague recollections as to whether any of the three judges, who previously had declared Appellant incompetent, had conducted subsequent pre-trial competency hearings or entered any order, either written or oral, restoring Appellant's competency. The court then questioned Appellant as to whether he felt that he was incompetent to stand trial, to which Appellant answered in the negative. Following this, the court imposed sentences on each count.

                order to transport, noting that the court had been "advised by the Department of Health and Rehabilitative Services by and through the Forensic Service Director at Florida State Hospital, Chattahoochee, Florida, that [Appellant] is competent to stand trial" and directing the sheriff to "take [Appellant] into custody and return him to Suwannee County for a hearing on the issues raised by the Forensic Service Director's report."   On January 3, 1991, Appellant was discharged by the administrator of the Florida State Hospital.  There is no evidence in the record of a competency hearing, and both parties have stipulated in the supplemental record that the trial court did not conduct a pre-trial competency hearing
                

On August 28, 1991, Appellant filed a notice of appeal. On September 9, 1991, Judge Douglas rendered a nunc pro tunc order finding Appellant competent to stand trial based on the reports of court-appointed psychiatric experts and the reports of Drs. Steven Collins and Michael T. D'Errico of the Florida Department of Health and Rehabilitative Services. The trial court did not have jurisdiction to enter this order, however, because it was entered after the notice of appeal had been filed, so it is a nullity. See State ex rel. Faircloth v. District Court of Appeal, Third District, 187 So.2d 890 (Fla.1966) (filing of notice of appeal vests in appellate court complete and exclusive jurisdiction of the subject matter and of the parties to the appeal).

On this record, we must reverse the convictions and remand for a proper competency hearing. Although Appellant never requested a competency hearing before he proceeded to trial, this does not constitute a waiver of the trial court's duty to hold a hearing on competency if reasonable grounds exist. See State v. Tait, 387 So.2d 338, 341 (Fla.1980). Generally, a hearing to determine whether a defendant was competent to stand trial cannot be held retroactively. Tingle v. State, 536 So.2d 202 (Fla.1988). However, the supreme court has stated that there is no per se rule in Florida forbidding a nunc pro tunc competency determination under any circumstances. Mason v. State, 489 So.2d 734, 737 (Fla.1986), citing State v. Williams, 447 So.2d 356 (Fla. 1st DCA 1984). Although the court acknowledged the inherent problems in conducting a retroactive competency evaluation in earlier cases such as Hill v. State, 473 So.2d 1253 (Fla.1985), it also observed that a " 'court may find that 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.' " Mason, 489 So.2d at 737 [quoting Martin v. Estelle, 583 F.2d 1373, 1375 (5th Cir.1978) ]; see also Williams, 447 So.2d at 359.

The instant case, however, is significantly different from the cases cited above in that here Appellant was actually adjudicated (rather than merely suspected of being) incompetent to stand trial. "A judicial determination of incompetence remains valid until there is a subsequent judicial determination that the [adjudged incompetent] is competent to proceed." Downing v. State, 617 So.2d 864, 866 (Fla. 1st DCA 1993). Accordingly Appellant's second point concerns the failure of the trial court to instruct the jury, as he requested, on the lesser-included offenses of attempted second-degree murder, attempted third degree murder, and attempted manslaughter when instructing the jury on the charge of attempted first-degree murder. While the record is somewhat ambiguous in regard to Appellant's request for these instructions, we conclude that it is adequate to support his contention that a request was made and denied. It is clear that the trial court was obligated to instruct on necessarily lesser-included offenses. State v. Wimberly, 498 So.2d 929 (Fla.1986); Pride v. State, 511 So.2d 1068 (Fla. 1st DCA 1987); Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), pet. for rev. denied, 444 So.2d 418 (Fla.1984). Since attempted second-degree murder and attempted manslaughter are necessarily lesser-included offenses of the charged offense of attempted first-degree murder, it was error not to have given the instructions. Fla.Std.Jury Instr. (Crim.) at 285; see Hayes v. State, 564 So.2d 161 (Fla. 2d DCA 1990) (jury should have been instructed on lesser-included offenses of attempted second-degree murder and attempted manslaughter in prosecution for attempted first-degree felony murder).

we reverse Appellant's convictions on all charges and remand for a full evidentiary hearing on Appellant's competency. We are unaware of any authority under Florida law to vacate such an adjudication nunc pro tunc. Accordingly, before a new trial is conducted, the trial court shall ensure that Appellant's competency to proceed with the trial has been established.

The remaining issue, then, is whether the error was harmless. The failure to instruct on the next immediate lesser-included offense, one step removed, constitutes per se reversible error, while the failure to instruct on lesser-included offenses two or more steps removed may be found to be harmless error. State v. Abreau, 363 So.2d 1063 (Fla.1978). Because the trial court failed to instruct the jury on the next immediate lesser-included offense of attempted second-degree murder, one step removed from the charged offense (attempted first-degree murder), we cannot treat the failure to give the instructions as harmless error. See Acensio v. State, 497 So.2d 640 (Fla.1986).

Accordingly, the judgment of conviction on all counts is reversed, and the cause is remanded for a competency hearing and new trial.

REVERSED AND REMANDED.

ZEHMER, C.J., and ERVIN, J., concur.

WEBSTER, J., dissents with written opinion.

WEBSTER, Judge, dissenting.

I am unable to agree with the majority's analysis of the two issues presented by this appeal. Therefore, respectfully, I am constrained to dissent. I shall discuss each of the issues in turn.

I. THE COMPETENCY ISSUE

I agree that it was error for the trial court not to hold a competency hearing before appellant's trial. Fla.R.Crim.P. 3.212(c)(6). However, I do not agree that reversal of appellant's convictions is compelled as a result of that error. Instead, I would remand with directions that the trial court determine whether a meaningful retrospective competency hearing can be held. I would direct, further, that, if the trial court determines that such a hearing cannot be held, it vacate appellant's convictions and grant a new trial, assuming that appellant is then found to be competent. However, if the trial court determines that such a hearing can be held, it should do so, making appropriate findings. If, after such a hearing, the trial court were to conclude that appellant was not competent at the time of his trial, it should set aside the convictions and grant appellant a new trial, assuming that it were to find that appellant had since regained his competency.

There are, of course, problems associated with such a retrospective competency hearing. However, the procedure I have outlined has been resorted to with some frequency in the federal system. See, e.g., United States v. Renfroe, 825 F.2d 763 (3d Cir.1987); United In United States v. Hutson, 821 F.2d 1015 (5th Cir.1987), the defendant had been found to be incompetent to stand trial, and was committed to a federal correctional facility for psychological evaluation and treatment. Some months later, the defendant's treating psychiatrist...