Washington v. State

• Decision Date: 06 January 2023
• Docket Number: 2D21-1984
• Parties: STEVEN WASHINGTON, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

STEVEN WASHINGTON, Appellant, v. STATE OF FLORIDA, Appellee.

No. 2D21-1984

Florida Court of Appeals, Second District

January 6, 2023

Appeal from the County Court for Manatee County; Melissa Gould Judge.

Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

ORDER RELINQUISHING JURISDICTION

PER CURIAM.

Steven Washington appeals the trial court's order withholding adjudication for two counts of violating a county noise ordinance and the resulting fine, which the trial court converted into community service hours. See Manatee County, Fla., Code of Ordinances ch. 2-21, § 2-2134 (2019) available at https://library.municode.com/fl/manatee _county/codes/code_of_ordinances?nodeId=PTIIMACOCOOR_CH2-21MIPROF. It is unclear from our record whether Mr. Washington or his counsel was present at the competency hearing for Mr Washington or whether the trial court made an independent determination of competency. Therefore, we relinquish jurisdiction to the trial court for further proceedings consistent with this order.

I. Background

Omar Abdelghany appeared as defense counsel in July 2020. He moved to withdraw in December 2020. Our record contains no trial court order ruling on the motion. Joshua Monteiro appeared as defense counsel in August 2020 and moved for a competency evaluation in October 2020.

In December 2020, the trial court appointed Dr. Yamout to evaluate Mr. Washington and scheduled a competency hearing for January 7, 2021. The trial court stated the following in its order:

WITHIN TWO BUSINESS DAYS OF RECEIPT OF ALL OF THE DOCTOR'S REPORTS, THE ATTORNEYS SHALL CONFER WITH EACH OTHER AND DETERMINE IF AT THE COMPETENCY HEARING THERE WILL BE A STIPULATION TO ANY REPORT IN LIEU OF LIVE TESTIMONY, WHETHER THE DOCTOR'S PRESENCE AT THE HEARING WILL BE REQUIRED, OR WHETHER TELEPHONIC TESTIMONY WILL BE AGREED TO. THE ATTORNEYS SHALL BE RESPONSIBLE FOR SECURING THE TESTIMONY OF THE WITNESSES AT THE COMPETENCY HEARING IF REQUIRED. THE ATTORNEYS SHALL INFORM THE JUDGE'S JUDICIAL ASSISTANT BY EMAIL WITH COPY TO OPPOSING COUNSEL AT LEAST TWO BUSINESS DAYS PRIOR TO THE HEARING AS TO THE RESULT OF THIS DISCUSSION.

(Emphasis added.) No such email is in our record; neither party mentioned an email on appeal.

Mr. Monteiro represented Mr. Washington at the January 7, 2021, hearing. The trial court continued the January hearing to March 30 because Mr. Monteiro was unable to complete the competency evaluation. Mr. Monteiro specifically requested the March 30 date because he already had to be in court that day.

The progress docket for the competency hearing stated "Defendant Present by Attorney" four times and "Defendant Not Present" one time. In contrast, the hearing transcript listed only the prosecutor under "Appearances"-no defense counsel. At the hearing, an "unidentified male" said "Steven Washington," without additional context, and asked for a June trial. The trial court scheduled the trial for June 7, stated that the "unidentified male" would get notice, and then stated, "Okay. Thank you. Next?" There was a pause in the recording. Afterwards, the trial court stated that it had a report for Mr. Washington, an "unidentified female" said the report was by Mr. Abdelghany, and the trial court said it would "do that one later." There was another pause in the recording.

Later, an "unidentified female" announced the case for Mr. Washington and claimed that Mr. Abdelghany represented Mr. Washington. Again, a pause in the recording. The trial court mentioned there was a report for Mr. Washington, asked if it was on April 1, and stated there were "lots of cases." The trial court asked who represented Mr. Washington; the prosecutor stated it was Mr. Monteiro. The trial court then stated: "And has this person been found competent? Let's see. All right, I see that he's competent to proceed. I'm going to ask that the Clerk file this with a confidential thing." The trial court never entered a written competency order.

We ordered the clerk to supplement the record with the document(s)-presumably, the expert report-that the trial court asked the clerk to file "with a confidential thing" at the March 30, 2021, hearing. The clerk certified that "the competency evaluation report . . . does not exist in the record." In response to our order, Mr. Washington later supplemented the record with a March 12, 2021, competency evaluation by Dr. Yamout.

II. Discussion

Mr. Washington asserts for the first time on appeal that the competency proceeding was improper because the record does not show that (1) he and defense counsel attended the hearing, (2) the parties agreed to rely solely on the expert report, (3) the trial court made an independent competency finding, or (4) the trial court entered a written competency order.^[1] The State contends that Mr. Washington failed to establish fundamental error because the record reflects that defense counsel was present and "the trial court was entitled to base its finding of competency on the detailed report if the parties agreed."

We review a challenge to the adequacy of a competency proceeding raised for the first time on appeal for fundamental error. Johnson v. State, 266 So.3d 234, 235 (Fla. 2d DCA 2019) (citing Hendrix v. State, 228 So.3d 674, 675 (Fla. 1st DCA 2017)). "Error is fundamental if it goes to the foundation of a case and amounts to a denial of due process." Id. at 236 (quoting Hendrix, 228 So.3d at 676).

"Once a reason for a competency hearing has arisen, the defendant has a due process right to an independent finding of competency." Golloman v. State, 226 So.3d 332, 335 (Fla. 2d DCA 2017) (citing Zern v. State, 191 So.3d 962, 965 (Fla. 1st DCA 2016)). Neither the trial court nor the parties can waive the right to an independent competency determination; "a trial court's failure to make such a finding constitutes fundamental error." Id. (citing Zern, 191 So.3d at 965). So, the defendant cannot stipulate to the ultimate issue of competency as it would improperly absolve the trial court from making its independent determination of competency. Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014). "However, when the parties agree, the trial court 'may decide the issue of competency on the basis of written reports alone.' "Dubon v. State, 295 So.3d 259, 275 (Fla. 4th DCA 2020) (quoting Dougherty, 149 So.3d at 679).

A defendant also has the due process right to be present at the competency hearing. See Smith v. State, 295 So.3d 353, 355 (Fla. 5th DCA 2020) ("[T]here is no question that Smith was denied his constitutional right to due process of law when the trial court failed to afford him an opportunity to be present at his competency hearing."); cf. Carrion v. State, 235 So.3d 1051, 1054 (Fla. 2d DCA 2018) ("Mr. Carrion must be present at the new competency hearing."); Sheheane v. State, 228 So.3d 1178, 1181 (Fla. 1st DCA 2017) (same).

Here, our record is contradictory and unclear whether defense counsel was present at the March 30, 2021, competency hearing or whether both parties agreed that the trial court could decide the issue of competency based solely on the expert's written report. There is no indication that Mr. Washington was ever present at the hearing or why he was not present. We cannot discern from the record whether defense counsel was present; the "unidentified male" never identified himself and never spoke again after the trial court scheduled the case for trial. Notably, the "unidentified male" did not speak up when the trial court asked who represented Mr. Washington. At one point, a female claimed a different attorney represented Mr. Washington without correction. The transcript did not list any defense counsel present for Mr. Washington at the competency hearing.

The record also fails to show that the trial court made an independent determination on Mr. Washington's competency. See generally Dubon, 295 So.3d at 275 ("Even if it is simply 'unclear whether the trial court made an independent determination' of the defendant's competency, the case must be remanded for further proceedings." (quoting Pittman v. State, 254 So.3d 494, 497 (Fla. 4th DCA 2018))). Based on Mr. Washington's response to our order to supplement the record, the trial court presumably saw the March 12, 2021, competency evaluation before stating that he was competent.

Although the clerk certified that the document(s) that the trial court may have reviewed at the competency hearing was not in the record, it is impossible to tell from our record if the trial court made an independent determination of competency. Indeed, it is not even clear if Mr. Washington or defense counsel were present or if the parties agreed to allow the trial court to decide the issue of competency based on the written report alone.^[2] See Pittman, 254 So.3d at 497 ("Although the record reflects that the trial court reviewed the expert's report and made the statement 'Well, he's competent,' the trial court's finding of competency may have been based, at least in part, on appellant's stipulation to his own competency. On this record, it is impossible to tell whether the trial court truly made an independent determination of competency."); see also Dubon, 295 So.3d at 275 ("[T]he record fails to reflect that the trial court made an independent determination of appellant's competency to proceed to trial. There was no agreement between the parties to allow the judge to decide the issue of competency on the basis of the written...