Tapp v. State

• Decision Date: 19 March 2021
• Docket Number: Case No. 5D20-630
• Citation: 313 So.3d 925 (Mem)
• Parties: Niccole TAPP, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

313 So.3d 925 (Mem)

Niccole TAPP, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D20-630

District Court of Appeal of Florida, Fifth District.

Opinion filed March 19, 2021

Matthew J. Metz, Public Defender, and Louis A. Rossi, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

WALLIS, J.

Appellant, Niccole Tapp, appeals the judgment and sentence entered after a jury found her guilty of burglary of a dwelling and petit theft. On appeal, she challenges the trial court's failure to hold a competency hearing before sentencing her.

Prior to sentencing, Appellant's trial counsel moved for a psychological evaluation to determine mitigating circumstances. The trial court entered an order appointing experts to examine Appellant's competency pursuant to Florida Rule of Criminal Procedure 3.210(b). The order stated that the experts were appointed for the purpose of determining whether Appellant is "competent to stand trial." However, the record does not contain the request for the evaluation, the doctor's report, or any evidence that the trial court conducted a competency hearing or independently adjudicated Appellant competent before proceeding with sentencing. Accordingly, on this record, Appellant has demonstrated fundamental error as the trial court presumably found reasonable grounds to believe Appellant was incompetent to proceed but failed to thereafter make an independent determination as to Appellant's competency. Therefore, we affirm Appellant's judgment, and we remand for the trial court to enter a written order nunc pro tunc on Appellant's competency. If the trial court finds that Appellant's competency prior to sentencing cannot be retroactively determined, or if the trial court finds that Appellant was not competent, the trial court shall vacate the sentence, order that a new competency evaluation be conducted, and hold a hearing on the new evaluation. See Torrez v. State, 294 So. 3d 390, 406 (Fla. 4th DCA 2020).

JUDGMENT AFFIRMED. REMANDED for Further Proceedings.

SASSO and NARDELLA, JJ., concur.