Moreno v. State, 3D15–2883

• Decision Date: 08 November 2017
• Docket Number: No. 3D15–2883,3D15–2883
• Citation: 232 So.3d 1133
• Parties: Luis Fundora MORENO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

232 So.3d 1133

Luis Fundora MORENO, Appellant,

v.The STATE of Florida, Appellee.

No. 3D15–2883

District Court of Appeal of Florida, Third District.

Opinion filed November 8, 2017

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.

Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.

LUCK, J.

Defendant Luis Fundora Moreno appeals the trial court's finding that he was competent to be sentenced for violating his community control. After a brief competency hearing where the parties stipulated that the two doctors appointed to evaluate Moreno would testify consistently with their written reports (both doctors found Moreno competent), the trial court accepted the stipulation and made its competency finding. Moreno contends the trial court erred by not making an independent determination of Moreno's competency, and abused its discretion by failing to appoint a neuropsychologist. After review of the record and briefs, and with the benefit of oral argument, we affirm the competency finding and sentence although we remand for the limited purpose of having the trial court enter a written competency order memorializing its oral ruling.

Factual Background and Procedural History

The First Sentencing Hearing. In February 2014, Moreno was charged with violating his community control by failing to complete a mental health evaluation; failing to register for a domestic violence class; and failing to submit to a random drug test. A few months later, in May, at the community control violation hearing, Moreno asked the trial court to discharge his public defender so he could represent himself. The trial court conducted a Faretta hearing,¹ and after taking testimony from Moreno and finding that he knowingly, voluntarily, and intelligently waived his right to counsel, discharged the public defender, and continued with the hearing with Moreno as his own counsel. At the end of the hearing, the trial court found that Moreno willfully and substantially violated his community control. The trial court then turned to sentencing. After hearing from the state, Moreno's probation officer, and Moreno, the trial court sentenced Moreno to twenty-one years in prison, followed by two years of community control and thirteen years of probation.

The First Appeal. Moreno appealed, and we affirmed in part and reversed in part. We affirmed the revocation of Moreno's community control, but reversed the sentence because the trial court did not offer Moreno the assistance of counsel before the sentencing portion of the hearing as required by Florida Rule of Criminal Procedure 3.111(d)(5). Moreno v. State, 167 So.3d 522, 523 (Fla. 3d DCA 2015) (confession of error). ( Florida Rule of Criminal Procedure 3.111(d)(5) provides that if a defendant, as here, waives his right to counsel, "the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel." That includes a sentencing hearing.) We remanded "for the limited purpose of holding a new sentencing hearing with an offer of counsel." Id.

The Competency Hearing. On remand, with the public defender now representing Moreno, Moreno's counsel told the trial court there were reasonable grounds to believe Moreno was not competent to proceed with the sentencing hearing, and asked that doctors be appointed to evaluate his competency.² The trial court granted the motion, appointed two doctors to evaluate Moreno, and reset the case so the doctors had time to complete their evaluations. When the trial court called back the case three weeks later, the doctors had evaluated Moreno and submitted single-spaced five and nine page reports finding Moreno competent to proceed.

The state said it would stipulate that if the doctors were called to testify at the hearing they would testify consistently with their reports. Moreno's counsel said that she assumed that's what Moreno would want her to do, but she needed time to talk with him to confirm. The trial court passed the case so counsel could talk with Moreno. When the trial court recalled the case, counsel said that Moreno would make the same stipulation. The trial court accepted the stipulation, and found Moreno competent to proceed.

The Second Sentencing Hearing. At the sentencing hearing six weeks later, the trial court heard from the probation officer, Moreno's son and wife, a mitigation specialist at the public defender's office, and Moreno. The trial court said it considered the facts of the underlying convictions that caused Moreno to be on community control, his community control violations, and the mitigation evidence presented at the hearing, and sentenced Moreno to twenty-one years imprisonment, followed by fifteen years of probation.

Standard of Review

"A trial court's decision regarding competency will stand absent a showing of abuse of discretion." McCray v. State, 71 So.3d 848, 862 (Fla. 2011) (quotation omitted). That decision "does not constitute an abuse of discretion unless no reasonable person would take the view adopted by the trial court." Id. (quotation omitted).

Discussion

Moreno contends the trial court: (1) erred by relying only on the expert reports in finding him competent and not making an independent competency determination, and (2) abused its discretion by failing to appoint a neuropsychologist to evaluate him. The state responds that the record shows the trial court made an independent determination of Moreno's competency before sentencing him, and Moreno's counsel did not request that Moreno be evaluated by a neuropsychiatrist. We address each of these issues below.

1. Independent Competency Determination

A defendant is presumed sane when he enters the courtroom. Flowers v. State, 353 So.2d 1259, 1260 (Fla. 3d DCA 1978). But when there are reasonable grounds to believe the defendant is not competent, the trial court must determine whether the defendant "has sufficient present ability to consult with counsel with a reasonable degree of rational understanding – and whether he has a rational as well as a factual understanding of the pending ... proceedings." Gore v. State, 24 So.3d 1, 9 (Fla. 2009) (quoting Alston v. State, 894 So.2d 46, 54 (Fla. 2004) ); see also Fla. R. Crim. P. 3.211(a)(1) (setting forth the factors an expert must consider in determining competency). This determination must be "an independent legal" one "after considering the expert testimony or reports and other relevant factors." Shakes v. State, 185 So.3d 679, 681 (Fla. 2d DCA 2016) (citing Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014) ). The experts' written reports "are advisory to the trial court, which itself retains the responsibility of the decision." Dougherty, 149 So.3d at 678 (quotations omitted). Moreno argues the trial court did not make the required "independent competency determination" before the sentencing hearing, and it erred in relying solely on the expert reports in finding Moreno competent to proceed.

Our review of the record shows otherwise. On September 25, 2015, the trial court had an in-court conversation with Moreno about his last name. The trial court spoke to Moreno again on October 14, 2015, when he had him sworn in, and on the following day, when questioning Moreno about whether he wanted to discharge the public defender. At the sentencing hearing, the trial court addressed Moreno's competency and said that the court had spoken with Moreno and found him "to be intelligent, coherent, and alert." The trial court commented that Moreno seemed "to understand everything" and it didn't have reasonable grounds to be believe Moreno was not competent to proceed. The trial court observed and heard Moreno testify at the sentencing hearing, and found him to be coherent, alert, and logical. The trial court reiterated after hearing Moreno speak that it was confident Moreno understood the proceedings.

Taken together, the trial court made an independent determination of Moreno's competency. The trial court's finding was based on its observations of, and conversations with, Moreno at four hearings. While the trial court relied on the experts' reports in finding Moreno competent to proceed, as it was entitled to do, id. 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 report alone." (quotation omitted)), the court also explained that it found Moreno competent based on its experiences with him during the previous hearings.

The trial court's competency finding was leagues apart from those that have been reversed by the Florida courts. In Dougherty, for example, the Florida Supreme Court held the competency finding was insufficient...