Zern v. State

• Decision Date: 12 May 2016
• Docket Number: No. 1D14–5817.,1D14–5817.
• Citation: 191 So.3d 962
• Parties: Ronald Pak ZERN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

191 So.3d 962

Ronald Pak ZERN, Appellant,

v.STATE of Florida, Appellee.

No. 1D14–5817.

District Court of Appeal of Florida, First District.

May 12, 2016.

Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.

RAY, J.

Ronald Pak Zern, Appellant, appeals from his convictions for aggravated assault, aggravated battery on a person sixty-five years of age or older, improper exhibition of a firearm, and tampering with evidence. He argues that the trial court erred in failing to make an independent finding of competence or incompetence after ordering psychological evaluations and scheduling a competency hearing. We agree and reverse for this reason. We find no distinct reversible error with regard to Appellant's second issue concerning the trial court's failure to order an additional psychological evaluation upon the request of Appellant's counsel at a subsequent court appearance.

While the charges were pending, a psychologist evaluated Appellant at the request of his attorney. This psychologist issued a written report recommending that the court consider Appellant incompetent to proceed. On the State's motion, the court appointed a second psychologist to evaluate Appellant. When the matter was discussed at a conference, Appellant personally advised the court that he was competent and did not want a second evaluation, but his attorney did not join in this representation to the court. The court ordered the second evaluation, and the second psychologist opined that Appellant was competent to proceed.

Appellant appeared in court for a competency hearing after both expert reports were filed. At this hearing, Appellant was unruly and continued to insist on his competence, while arguing that his attorney was lying, setting him up, and trying to incriminate him. The State advised the court that it could hold a competency hearing without further ado but that the more typical approach when two psychologists have reached conflicting conclusions is to appoint a third psychologist to “kind of break the tie.” The court appointed a third evaluator. Appellant's counsel advised that she would “absolutely” ask for a competency hearing after the third evaluation, and the court explained to Appellant that it would determine his competence at a hearing where the experts would be available for cross-examination.

The third psychologist opined that Appellant was competent to proceed. The parties appeared in court for the competency hearing the day after the State filed the third psychologist's report. At that time, the court indicated that it had not yet seen the third report. The court was advised at the hearing that the third evaluator found Appellant competent. Appellant was represented by his fourth successive assistant public defender in the case, a different attorney from the one who had appeared at the prior hearing on Appellant's competency. Appellant's new counsel notified the court that he had spoken with Appellant and believed him to be competent, and he asked the court “to declare [Appellant] competent based on the reports.” The State responded, “In light of [defense counsel's] stipulation, Judge, we maintained all along that he's competent, and the defendant himself has assured the Court that he's competent throughout this cycle. So we would ask that we be able to move forward with the case at this time.” The court declared Appellant competent, and the brief hearing concluded without any comment from Appellant or testimony from the experts, even though they were present and prepared for a hearing.

A criminal defendant has a procedural due process right to the observance of procedures adequate to protect his or her right not to be tried or convicted while incompetent to stand trial. Dougherty v. State, 149 So.3d 672, 676 (Fla.2014) (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ). Florida Rules of Criminal Procedure 3.210 through 3.212 provide the competency procedures required in this state.

According to Rule 3.210(b) and case law, once 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. Brooks v. State, 180 So.3d 1094, 1096 (Fla. 1st DCA 2015). At the competency hearing, the court must make its own independent finding of competence or incompetence. Dougherty, 149 So.3d at 677. If the parties and the court agree, the court may decide the issue based on the experts' reports without receiving any testimony. Id. at 677–78 (citing Fowler v. State, 255 So.2d 513, 515 (Fla.1971) ). However, the court must regard the reports as advisory only. Id. (citing McCray v. State, 71 So.3d 848, 862 (Fla.2011) ). Further, the court is not permitted to merely accept a stipulation of competence. Id. at 678. In fact,...