Thurston v. State, 1D17–2548

• Decision Date: 28 June 2018
• Docket Number: No. 1D17–2548,1D17–2548
• Parties: Travis THURSTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

250 So.3d 774

Travis THURSTON, Appellant,
v.
STATE of Florida, Appellee.

No. 1D17–2548

District Court of Appeal of Florida, First District.

June 28, 2018

Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel, Gainesville, and Melissa Joy Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Travis Thurston appeals his convictions for aggravated assault with a firearm, discharging a firearm in public, battery on a law enforcement officer, and resisting arrest. We affirm.

Thurston was arrested in 2015 after he shot a car and bit two police officers in a McDonald’s parking lot. Thurston’s bizarre behavior led the trial court to appoint an expert to determine whether he was competent to proceed. But before the court could make a competency determination, Thurston was taken into federal custody on unrelated charges. Nearly two years later, he returned to face his state charges. By then, a new judge and prosecutor were assigned, and Thurston had a new public defender.

Two witnesses into Thurston’s trial, the new judge realized the previous judge never made a competency finding. So during a continuance, the court appointed another expert to evaluate Thurston. That expert promptly evaluated Thurston, opined that he was competent, and prepared a report. The court then held a hearing and entered an order finding Thurston competent based on the expert’s report.

250 So.3d 775

Thurston’s first argument on appeal is that it was fundamental error to begin the trial without determining his competency. See Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) ("[O]nce the court has reasonable grounds to question the defendant’s competency, the court has no choice but to conduct a hearing to resolve the question."); Cotton v. State , 177 So.3d 666, 667–68 (Fla. 1st DCA 2015) ("It is a due process violation to proceed against an incompetent criminal defendant."). We have held, though, that a conviction can...