State of Florida v. Vernson Edward Dortch ( 2021 )

Supreme Court of Florida
____________
No. SC18-681
____________
STATE OF FLORIDA,
Petitioner,
vs.
VERNSON EDWARD DORTCH,
Respondent.
May 20, 2021
MUÑIZ, J.
A Florida rule of appellate procedure requires a criminal
defendant to file a motion to withdraw the plea in the trial court
before appealing an involuntary plea. This case presents a certified
conflict over whether there is a “fundamental error” exception to
that rule. We hold that there is no such exception. A defendant
who does not comply with the rule’s preservation requirement must
seek any available relief through collateral review.
I.
A. Facts and Procedural Background
On August 3, 2016, Vernson Dortch pleaded no contest to
charges of possession of a firearm by a convicted felon, dealing in
stolen property, aggravated assault by a detainee with a deadly
weapon, and introducing contraband into a county detention
facility. The plea, which resolved two cases then pending against
Dortch, was against the advice of counsel.
Dortch gave appropriate answers to the trial court’s questions
at the plea hearing. The trial court stated on the record that he
found the plea to be “freely and voluntarily given” and that Dortch
“under[stood] the nature and consequences of it.” Dortch’s counsel
signed the felony plea form, confirming that counsel “consider[ed]
[Dortch] competent to understand the charges against [him] and the
effect of the plea entered by this document.”
About two weeks later, the trial court held a sentencing
hearing. After hearing from Dortch and from one of the victims of
Dortch’s crimes, the court imposed a ten-year prison sentence,
including a three-year mandatory minimum. The next day,
Dortch’s counsel filed a notice of appeal. Notwithstanding the
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preservation requirement of Rule of Appellate Procedure
9.140(b)(2)(A)(ii)(c), which we discuss in detail below, Dortch did not
first file a motion to withdraw his plea.
Dortch’s appeal centered on events that happened months
before the plea hearing, when the case was before a different judge
and Dortch was represented by different counsel. On October 30,
2015, Dortch’s then-counsel had filed a written “Motion for
Examination of Defendant” under Rule of Criminal Procedure
3.210(b). The motion requested the appointment of an expert to
examine Dortch “on the issue of competence to proceed.” As
required by rule 3.210(b)(1), the motion included a certification that
Dortch’s counsel had “reasonable grounds to believe that [Dortch] is
incompetent to proceed.”
We do not know the factual basis for defense counsel’s belief.
Rule 3.210(b)(1) says: “To the extent that it does not invade the
lawyer-client privilege, the motion shall contain a recital of the
specific observations of and conversations with the defendant that
have formed the basis for the motion.” As to this requirement,
defense counsel’s motion said: “[T]he undersigned cannot allege
further as any recitation of specific observations of and
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conversations with the Defendant would invade the lawyer-client
privilege.”
All of that is unremarkable. The irregularity is that defense
counsel’s motion also said that “the defendant hereby waives the
required 20 day hearing, pursuant to Fla. R. Crim. P. 3.210(b).”
This was a reference to the rule’s requirement that the court hold a
competency hearing within 20 days if the court “has reasonable
ground to believe that the defendant is not mentally competent to
proceed.”
The trial court (again, a different judge from the one who
months later would take Dortch’s plea) entered an order that
granted defense counsel’s motion and appointed a psychologist to
examine Dortch. The court used a form order, with pre-printed
information and blank spaces that could be marked. In pre-printed
text, paragraph 5 of the form order gave notice of the 20-day
hearing requirement of rule 3.210(b). But beneath that notice, the
trial court added: “The Defendant hereby waives this provision and
shall schedule a competency hearing pursuant to the Florida Rules
of Criminal Procedure should it become necessary, with notice to
the State and Court.”
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The order did not say that the court had reasonable ground to
believe that Dortch was incompetent to proceed. Nor did the order
recite any facts about Dortch’s behavior or mental condition.
Instead, the order simply checked the box indicating that the
matter was before the court on motion by defense counsel.
The record does not indicate that the trial court ever held a
hearing to determine Dortch’s competence. Nor does the record
indicate whether Dortch’s examination took place or the results of
any such examination.
B. The Fourth District’s Decision
The Fourth District ruled on Dortch’s appeal in a unanimous
en banc decision. Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th
DCA 2018). Citing rules 3.210(b) and 3.212(b), the district court
first held that “[o]nce a trial court has reasonable grounds to believe
the defendant is incompetent and orders an examination, it must
hold a hearing and it must enter a written order on the issue.” Id.The district court concluded that the trial court violated these rules
here and that it had thereby committed “fundamental error.” Id.-5-
The Fourth District further held that, in these circumstances,
“it is not necessary that a defendant first file a motion to withdraw
plea.” Id. The district court reasoned:
To require a criminal defendant, who may be
incompetent, to file a motion to withdraw a plea before
raising the issue on appeal is unwarranted. If a
defendant is incompetent, confining him to post-
conviction relief, without the assistance of counsel, is not
a remedy designed to do justice.
Id. As a remedy, the Fourth District remanded the case with
instructions to determine Dortch’s competence nunc pro tunc, if
possible. If not, the judgment and sentence were to be vacated and
the case set for trial. Id.The Fourth District certified conflict with the decisions in
Pressley v. State, 227 So. 3d 573 (Fla. 1st DCA 2017); Garcia-
Manriquez v. State, 146 So. 3d 134 (Fla. 3d DCA 2014); and Hicks v.
State, 915 So. 2d 740 (Fla. 5th DCA 2005). We accepted
jurisdiction to resolve the conflict.
II.
On the conflict issue, the State argues that the Fourth District
erred by holding that Dortch could directly appeal his convictions
without first filing a motion to withdraw his plea. We agree. There
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is no fundamental-error exception to the applicable preservation
requirement.
A. Robinson and the Criminal Appeal Reform Act of 1996
This Court’s leading decision on the right to appeal after
pleading guilty or nolo contendere is Robinson v. State, 373 So. 2d
898 (Fla. 1979).1 We held in Robinson that “[t]here is an exclusive
and limited class of issues which occur contemporaneously with the
entry of the plea that may be the proper subject of an appeal.” Id.
at 902. We characterized those issues as ones that stem from
“conduct that would invalidate the plea itself.” Id.Robinson’s list of appealable issues includes “only the
following: (1) the subject matter jurisdiction, (2) the illegality of the
sentence, (3) the failure of the government to abide by the plea
1. Robinson involved a constitutional challenge to the
following provision, which the Legislature had enacted in 1976: “A
defendant who pleads guilty or nolo contendere with no express
reservation of the right to appeal shall have no right to a direct
appeal. Such a defendant shall obtain review by means of collateral
attack.” Ch. 76-274, § 7, Laws of Fla.; § 924.06(3), Fla. Stat. (Supp.
1976). We upheld the statute, concluding that its prohibitions “are
directed to pretrial rulings and not to matters which may occur
contemporaneously with” the plea. Robinson, 373 So. 2d at 900.
We concluded that the Legislature had done “no[thing] more than
codify the existing case law on the subject.” Id.-7-
agreement, and (4) the voluntary and intelligent character of the
plea.” Id. at 902.
Importantly for this case, we further held in Robinson that “an
appeal from a guilty plea should never be a substitute for a motion
to withdraw a plea.” Id. (emphasis added). To illustrate the point,
we said: “If the record raises issues concerning the voluntary or
intelligent character of the plea, that issue should first be presented
to the trial court in accordance with the law and standards
pertaining to motions to withdraw a plea.” Id. Our decision in
Robinson thus determined that the state constitutional right to
appeal does not include the right to appeal an involuntary plea
without first filing a motion to withdraw plea.
Nearly two decades after we decided Robinson, the Legislature
enacted the Criminal Appeal Reform Act of 1996. Among its
provisions was the following:
If a defendant pleads nolo contendere without expressly
reserving the right to appeal a legally dispositive issue, or
if a defendant pleads guilty without expressly reserving
the right to appeal a legally dispositive issue, the
defendant may not appeal the judgment or sentence.
Ch. 96-248, § 4, Laws of Fla.; § 924.051(4), Fla. Stat. (Supp. 1996).
Despite the categorical language of the text, in Amendments to the
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Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1105 (Fla.
1996) (1996 Amendments), we held that “[a] defendant must have
the right to appeal that limited class of issues described in
Robinson.”
In response to the 1996 Act, this Court amended the Rules of
Appellate Procedure to codify Robinson’s limited list of appealable
issues and its requirement that a defendant file a motion to
withdraw plea before appealing an allegedly involuntary plea. Id.We also announced our adoption of Rule of Criminal Procedure
3.170(l), “which authorizes the filing of a motion to withdraw the
plea after sentencing within thirty days from the rendition of the
sentence, but only upon the grounds recognized by Robinson or
otherwise provided by law.” Id. We said that we were adopting the
new rule 3.170(l) “[c]onsistent with the legislature’s philosophy of
attempting to resolve more issues at the trial court level.” Id.B. Voluntariness and Rule 9.140(b)(2)(A)(ii)(c)
Dortch’s appeal is governed by Rule of Appellate Procedure
9.140(b)(2)(A)(ii)(c)—again, the rule through which we codified
Robinson and responded to the 1996 Act. That rule allows a
defendant to appeal “an involuntary plea, if preserved by a motion
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to withdraw plea.” Accordingly, we begin by addressing the
threshold question whether Dortch’s claim goes to the voluntariness
of his plea.2
As we will explain in detail, Dortch claims that he had a
procedural due process right to a determination of his competence
before the trial court accepted his no contest plea. “The nature of
competency goes to the heart of whether a defendant has the
capacity to make a cogent, legally binding decision.” Sheheane v.
State, 228 So. 3d 1178, 1181 (Fla. 1st DCA 2017). And we have
said that a plea “must be voluntarily made by one competent to
know the consequences of that plea and must not be induced by
promises, threats, or coercion.” Mikenas v. State, 460 So. 2d 359,
361 (Fla. 1984). Because a voluntary plea requires a competent
defendant, we conclude that Dortch’s appeal claims an “involuntary
2. Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii) says
that, absent reservation, a “defendant who pleads guilty or nolo
contendere may otherwise directly appeal only: a. The lower
tribunal’s lack of subject matter jurisdiction; b. a violation of the
plea agreement, if preserved by a motion to withdraw plea; c. an
involuntary plea, if preserved by a motion to withdraw plea; d. a
sentencing error, if preserved; or e. as otherwise provided by law.”
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plea” for purposes of the rule and that we must therefore proceed to
address the rule’s preservation requirement.
C. Preservation and Rule 9.140(b)(2)(A)(ii)(c)
The Fourth District concluded that the trial court had erred by
not holding a competency hearing before accepting Dortch’s plea
and that this was fundamental error. It further concluded that,
because the trial court had committed fundamental error, it was
not necessary for Dortch to file a motion to withdraw plea before
pursuing a direct appeal.
1.
A threshold issue in addressing any claim of fundamental
error is whether there was error at all—“fundamental” or not.
Dortch’s claim of error in this case warrants discussion.
“[T]he conviction of an accused person while he is legally
incompetent violates due process.” Pate v. Robinson, 383 U.S. 375,
378 (1966). In Godinez v. Moran, 509 U.S. 389, 398-99 (1993), the
Supreme Court held that the constitutional standard for
competence to plead guilty is the same as the standard for
competence to stand trial, as established in Dusky v. United States,
362 U.S. 402 (1960). That standard asks “whether the defendant
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has ‘sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding’ and has ‘a rational as
well as factual understanding of the proceedings against him.’ ”
Godinez, 509 U.S. at 396 (citation omitted).
In this case, Dortch does not allege a violation of his right not
to be proceeded against while incompetent. He instead asserts that
he “may have been and may still be incompetent.” Dortch thus
invokes the separate “procedural due process” right that the
Supreme Court established in Pate and in Drope v. Missouri, 420
U.S. 162, 172 (1975).3
The Supreme Court in Pate held that “the failure to observe
procedures adequate to protect a defendant’s right not to be tried or
convicted while incompetent to stand trial deprives him of his due
process right to a fair trial.” Drope, 420 U.S. at 172 (explaining
Pate’s holding). But the Court did not “prescribe a general standard
with respect to the nature or quantum of evidence necessary to
3. To be clear, Pate and Drope addressed the circumstances in
which a defendant has a constitutional right to procedures to
protect his right not to be tried while incompetent. Those cases did
not involve a right to appeal or due process rights in the appellate
context.
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require resort to an adequate procedure.” Id. at 172. Instead, the
question in every case is whether the information known to the trial
court “create[s] a sufficient doubt of [the defendant’s] competence to
stand trial to require further inquiry on the question.” Id. at 180.
In Drope, the Supreme Court cautioned that there are “no
fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the question is often
a difficult one in which a wide range of manifestations and subtle
nuances are implicated.” Id. Factors that the Supreme Court
deemed relevant to determining whether further inquiry is required
include “evidence of a defendant’s irrational behavior, his demeanor
at trial, and any prior medical opinion on competence to stand
trial.” Id.One thing is clear: while defense counsel’s views about a
defendant’s competence are important, the Supreme Court in Drope
rejected the notion that “courts must accept without question a
lawyer’s representation concerning the competence of his client.”
Id. at 177 n.13. Federal circuit courts applying Drope have held
that mere assertions of defense counsel, without more, do not
trigger a defendant’s constitutional right to competency
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proceedings. See, e.g., United States v. Abdulmutallab, 739 F.3d
891, 901 (6th Cir. 2014) (competency hearing not constitutionally
required where defense counsel’s motion “did not provide sufficient
factual details that would cause the court to question
Abdulmutallab’s competency”); Bryson v. Ward, 187 F.3d 1193,
1202 (10th Cir. 1999) (“[T]he concerns of counsel alone are
insufficient to establish doubt of a defendant’s competency.”);
Reynolds v. Norris, 86 F.3d 796, 800 (8th Cir. 1996) (same).
We have long recognized that rule 3.210 establishes the
procedures through which Florida complies with the mandate of
Drope and Pate and protects a defendant’s right not to be proceeded
against while incompetent. See Lane v. State, 388 So. 2d 1022,
1025 (Fla. 1980). In Lane we explained that “[t]he law is now clear
that the trial court has the responsibility to conduct a hearing for
competency to stand trial whenever it appears reasonably
necessary, whether requested or not, to ensure that a defendant
meets the standard of competency set forth in Dusky.” Id.Consistent with Drope and Pate, rule 3.210(b) requires a
hearing when the trial court “has reasonable ground to believe that
the defendant is not mentally competent to proceed.” Once that
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predicate is established, rule 3.210 says that the trial court “shall”
hold a competency hearing within 20 days and that it “may” order a
psychological examination. Given the text of the rule, and reading
the rule in light of Drope and Pate, the “reasonable ground” test is
an objective one that looks at the information available to the trial
court at the relevant time in the proceedings.
Whether the trial court erred in Dortch’s case, and if so
whether any error was of constitutional dimension, would present
an issue of first impression for our Court. Here, the only record
“evidence” of Dortch’s potential incompetence was his initial
counsel’s unelaborated representation to that effect—a
representation that counsel undermined by simultaneously waiving
a hearing (at least pending the psychological evaluation). Other
evidence in the record cuts against the argument that there existed
“reasonable ground” to question Dortch’s competence. Most
importantly, Dortch’s second counsel affirmed that Dortch was
competent at the time of his plea, and the trial judge who
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conducted the plea colloquy also found Dortch competent to enter
his plea.4
Dortch is thus left to argue that the due process violation in
this case consists of the trial court deviating from rule 3.210 by
“ordering an evaluation of [Dortch’s] competency but then accepting
his plea without conducting a competency hearing or making a
competency determination.” This argument presents a question
that this Court has never addressed: does a trial court’s decision to
order a psychological evaluation create a constitutional entitlement
to a subsequent competency hearing, regardless of whether the
information available to the trial court met the evidentiary threshold
4. For context, consider the contrast with the evidence that
triggered the right to a competency determination in Drope and
Pate. The defendant in Drope tried to choke his wife to death on the
eve of trial and then shot himself in a suicide attempt on the
morning of the second day of trial. Drope, 420 U.S. at 162. In Pate,
the trial court had been presented with the testimony of four
witnesses showing that the defendant “had a long history of
irrational behavior,” including a suicide attempt and the murder of
his 18-month-old son. Pate, 383 U.S. at 378-81.
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for invoking the rule 3.210 competency procedures in the first
place? 5
Several variables specific to this case would potentially be
relevant to answering the question. Dortch’s counsel asked for an
evaluation but explicitly waived a hearing. The trial court granted
the psychological examination without making any explicit finding
about whether there was “reasonable ground” to question Dortch’s
competency. And neither the record nor the court’s order discloses
any details about Dortch’s condition or behavior that would have
supported such a finding.
In any event, there is no need for us here to resolve the
question whether (and if so how) the trial court erred by failing sua
sponte to hold a competency hearing. Dortch did not comply with
the preservation requirement of rule 9.140(b)(2)(A)(ii)(c).
Accordingly, for the court of appeal to have considered Dortch’s
claim of error at all, there would have to be a fundamental-error
5. This Court’s decision in Dougherty v. State, 149 So. 3d 672(Fla. 2014), in which we emphasized the importance of compliance
with rule 3.210(b), sheds no light on this issue. The defendant in
Dougherty had been adjudicated incompetent, and the issue was
whether defense counsel could subsequently stipulate that the
defendant’s competence had been restored. Id. at 673.
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exception to the rule. We next explain why there is no such
exception.
2.
To put the preservation issue in context, we begin with some
observations about the fundamental error doctrine itself.
“Fundamental error” is a label for error that an appellate court will
remedy even though the claim was not preserved in the court below.
Appellate courts will not find fundamental error unless the error
meets some threshold level of seriousness. 6 But courts (including
this Court) have articulated the fundamental error test in different
ways depending on the context. See Maddox v. State, 760 So. 2d
89, 99 (Fla. 2000) (“It is no secret that the courts have struggled to
establish a meaningful definition of ‘fundamental error’ that would
be predictive as compared to descriptive.”) (quoting Denson v. State,
711 So. 2d 1225, 1229 (Fla. 2d DCA 1998)). We will not muddy the
waters even more by attempting to make sense of or harmonize the
various tests here.
6. “Courts and lawyers well know the meaning of fundamental
error—a mistake in a proceeding substantial enough to abrogate the
need for contemporaneous objection.” Thomas v. State, 894 So. 2d
1000, 1002 (Fla. 1st DCA 2005).
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That said, two overarching conceptual points about the
fundamental error doctrine are central to this case. First, a
defendant has no constitutional due process right to the correction
of unpreserved error. “No procedural principle is more familiar,”
the Supreme Court has observed, “than that a constitutional right,
or a right of any other sort, may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before
a tribunal having jurisdiction to determine it.” United States v.
Olano, 507 U.S. 725, 731 (1993) (citation omitted).
Courts developed the fundamental error doctrine as a matter
of grace, not because of any entitlement on the part of criminal
defendants. We have said that an “appellate court should exercise
its discretion under the doctrine of fundamental error very
guardedly.” Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970)
(emphasis added). And we have explained: “The reason that courts
correct error as fundamental despite the failure of the parties to
adhere to procedural rules regarding preservation is not to protect
the interests of a particular aggrieved party, but rather to protect
the interests of justice itself.” Maddox, 760 So. 2d at 98.
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The second overarching point is that there is no ironclad rule
that every preservation requirement must have an unwritten
exception allowing the appellate court to correct an unpreserved
error. For example, Rule of Appellate Procedure 9.140(e) says that
“[a] sentencing error may not be raised on appeal” unless preserved
by a contemporaneous objection or by filing a motion under Rule of
Criminal Procedure 3.800(b). In Jackson v. State, 983 So. 2d 562,
569 (Fla. 2008), we interpreted this rule to mean that “for
sentencing errors, to raise even fundamental errors on appeal,
defendants must first file a motion under rule 3.800(b).” There is
such a thing as a truly mandatory preservation requirement.
With these considerations in mind, we can turn again to rule
9.140(b)(2)(A)(ii)(c). The Fourth District held that it could apply a
“fundamental error” exception in this case. For several reasons, we
disagree.
First, recall where rule 9.140(b)(2)(A)(ii)(c) came from. The rule
codified our decision in Robinson. And in Robinson we said that “an
appeal from a guilty plea should never be a substitute for a motion
to withdraw a plea.” 373 So. 2d at 902. If we were to recognize or
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create a fundamental-error exception in this case, we would be
contradicting ourselves.
Second, a fundamental-error exception would be inconsistent
with this Court’s precedent interpreting the 1996 Act. In Leonard v.
State, 760 So. 2d 114, 116-17 (Fla. 2000), we held that the 1996
Act itself codified existing law as embodied in Robinson. We did
that even though the text of the 1996 Act says that a defendant who
pleads guilty or nolo contendere without reservation “may not
appeal the judgment or sentence.” § 924.051(4), Fla. Stat. (2020).
We reasoned that it was necessary to read Robinson into the statute
to avoid potential constitutional concerns. Leonard, 760 So. 2d at
118.
Given this Court’s construction of the 1996 Act, it is important
that we adhere to Robinson, including what it said about the need
to file a motion to withdraw plea. The 1996 Act expressly says:
It is the intent of the Legislature that all terms and
conditions of direct appeal and collateral review be
strictly enforced, including the application of procedural
bars, to ensure that all claims of error are raised and
resolved at the first opportunity. It is also the
Legislature’s intent that all procedural bars to direct
appeal and collateral review be fully enforced by the
courts of this state.
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§ 924.051(8), Fla. Stat. (Supp. 1996). Having committed ourselves
to the position that the Legislature adopted the 1996 Act against
the backdrop of Robinson, and indeed that the 1996 Act
incorporates Robinson, we cannot pick and choose which aspects of
Robinson to follow. We must honor the legislative mandate.
Third, a fundamental-error exception would be inconsistent
with the underlying logic of Robinson and of the rule itself. For an
error to be considered “fundamental error,” it is generally necessary
(though not sufficient) that the error be of constitutional dimension.
Jackson, 983 So. 2d at 575. But every meritorious claim of an
involuntary plea involves constitutional error. “[I]f a defendant’s
guilty plea is not equally voluntary and knowing, it has been
obtained in violation of due process and is therefore void.” Bolware
v. State, 995 So. 2d 268, 272 (Fla. 2008) (quoting McCarthy v.
United States, 394 U.S. 459, 466 (1969)).
In this context, then, a fundamental-error exception would
produce one of two outcomes. Either the “exception” would swallow
the rule; or the appellate courts of this state would need to develop
a set of standards—unavoidably unpredictable in application—to
distinguish “fundamentally erroneous” involuntary pleas from “non-
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fundamentally erroneous” involuntary pleas. Neither outcome is
acceptable.
Fourth, given the overall framework of the relevant rules of
procedure, a fundamental-error exception is simply unwarranted.
At the same time this Court codified Robinson in rule
9.140(b)(2)(A)(ii)(c), we took care to facilitate defendants’ compliance
with the rule’s preservation requirement. Specifically, we adopted
Rule of Criminal Procedure 3.170(l) to give defendants 30 days after
the rendition of sentence to file a motion to withdraw plea. That
makes the deadline for filing a motion to withdraw plea concurrent
with the deadline for filing a notice of appeal. We also coupled our
adoption of rule 9.140(b)(2)(A)(ii)(c) with an amendment to Rule of
Appellate Procedure 9.020(h), “to provide that a motion to withdraw
the plea after sentencing will postpone rendition until its
disposition.” 1996 Amendments, 696 So. 2d at 1106. We said we
were making these changes to be “[c]onsistent with the legislature’s
philosophy of attempting to resolve more issues at the trial court
level.” Id. at 1105. In light of the structure of these interlocking
rules of procedure, there is no justification for a fundamental-error
exception to rule 9.140(b)(2)(A)(ii)(c).
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Finally, Dortch’s case proves the wisdom of requiring
involuntary plea claims to be addressed in the first instance by the
trial court, relatively close in time to the plea hearing. If the trial
court made a mistake here, it was easily correctable. A timely-filed
motion to withdraw plea would have allowed the parties and the
trial court to promptly clean up the messy record in this case and to
conduct any necessary competency proceedings. Instead, because
Dortch chose to ignore the governing rules of procedure, the Fourth
District found itself years after the fact asking the trial court to
reconstruct a record of Dortch’s competence at the time of his plea.
III.
Dortch makes several arguments in support of the Fourth
District’s decision, none of them persuasive.
First, Dortch points to Rule of Appellate Procedure
9.140(b)(2)(A)(ii)(e), a catchall provision that allows direct appeals
from unreserved pleas “as otherwise provided by law.” As we have
explained, there is no law that authorizes Dortch’s direct appeal in
these circumstances. And in any event, we would not strain to
apply this catchall provision to an appeal that is covered by one of
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the circumstances (an involuntary plea) specifically listed in rule
9.140(b)(2)(A).
Second, Dortch invokes this Court’s decision in State v. T.G.,
800 So. 2d 204 (Fla. 2001). In T.G., we applied the fundamental
error doctrine to allow a direct appeal by a juvenile who, without
counsel, had pleaded guilty to felony charges. Id. at 212. We
concluded that T.G.’s plea was involuntary as a matter of law
because the trial court had not complied with the procedures
governing a juvenile’s waiver of counsel. Id. at 213. As to
preservation, we acknowledged that Robinson and the applicable
rules of procedure required T.G. to have first filed a motion to
withdraw plea. But out of a “unique concern for juveniles who
enter pleas without the benefit of counsel,” we found it “appropriate
to recognize a narrowly drawn and extremely limited exception to
Robinson.” Id.Our opinion went on to say: “We again emphasize that in all
other cases involving a challenge to the voluntariness of the plea,
including those cases where the appellate court cannot determine
the voluntariness of the waiver from the face of the record, the
procedure of Robinson should be followed.” Id.- 25 -
T.G. is easily distinguishable—Dortch is not a minor, he did
have counsel when he entered his plea, and our decision in T.G. did
not consider the statutory limitations on our authority in this area.
But on an even more basic level, without receding from T.G., we
reject its approach to creating ad hoc exceptions to rule
9.140(b)(2)(A)(ii)(c). Dortch’s appeal—and the Fourth District’s
decision—prove that no matter how emphatically a court stresses
that its reasoning is good-for-one-case-only, every exception begets
demands for more. We think it best to follow the text of rule
9.140(b)(2)(A)(ii)(c) and to heed our own admonition from T.G.
Third, Dortch argues that we should not apply the
preservation requirement here because “unlike most challenges to
the voluntariness of a plea, trial courts are responsible for the
underlying error.” Again, we disagree. Beyond the problem of
asking us to create an ad hoc exception to the rule, this argument
is based on a flawed premise.
The acceptance of pleas is governed by Rule of Criminal
Procedure 3.172, which “provides basic procedures to ensure that a
defendant’s rights are fully protected when he or she enters a plea
to a criminal charge.” Griffin v. State, 114 So. 3d 890, 900 (Fla.
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2013). Like rule 3.210, rule 3.172 is animated by due process
concerns. Also like rule 3.210, rule 3.172 imposes obligations
directly on trial courts.
Rule 3.172(a) makes it the trial judge’s responsibility to
determine that a plea is voluntary. To that end, rule 3.172 requires
the trial court to question the defendant about the nature of the
charge, the defendant’s right to representation, the right to trial by
jury and attendant rights, the effect of a plea, the terms of any plea
agreement, any deportation consequences resulting from the plea,
and other matters. Thus, in the context of appeals from potentially
involuntary pleas, confining a fundamental-error exception to
judge-caused errors would not be a limiting principle.
Finally, Dortch argues that applying the rule’s preservation
requirement in these circumstances would be unjust. Dortch
worries that a potentially incompetent defendant would be left to
pursue postconviction relief without the assistance of counsel. We
are not unsympathetic to this concern.
However, this argument does not supply a reason why we
would be authorized to depart from the governing law as we have
explained it. And even if our discretion were unbridled, we would
- 27 -
have to consider the positive ends that rule 9.140(b)(2)(A)(ii)(c)
serves, not just the potential consequences to an individual
defendant who does not comply with the rule. Faithfully applied,
the rule brings clarity and finality. It allows errors to be corrected
promptly and efficiently—a benefit not just to the criminal justice
system overall, but to defendants themselves. And the rule is fair,
particularly because the accompanying rule on motions to withdraw
a plea gives defendants ample opportunity to seek relief from error
before pursuing an appeal. Here we note that Dortch does not
dispute that he would have been entitled to the assistance of
counsel in filing a motion to withdraw his plea.
To create an ad hoc exception in this case would contradict
governing law, spawn even more exceptions, and breed uncertainty.
We decline that invitation.
IV.
We hold that there is no fundamental-error exception to the
preservation requirement of rule 9.140(b)(2)(A)(ii)(c). Accordingly,
we do not reach the question whether the trial court in this case
committed error. Nor do we express any view on the claims that
will be available to Dortch if he seeks collateral relief. We quash the
- 28 -
decision under review and remand with instructions to affirm
Dortch’s convictions and sentences.
It is so ordered.
CANADY, C.J., and COURIEL and GROSSHANS, JJ., concur.
LAWSON, J., dissents with an opinion, in which POLSTON and
LABARGA, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LAWSON, J., dissenting.
I agree with the majority that issues relating to a criminal
defendant’s competency are subsumed within the larger topic of the
voluntariness of the plea and are therefore expressly subject to the
preservation requirement of Florida Rule of Appellate Procedure
9.140(B)(2)(A)(ii)c. However, because due process dictates that we
recognize a fundamental-error exception to this rule, I would
approve the Fourth District Court of Appeal’s unanimous en banc
opinion, which reversed and remanded to the trial court for further
proceedings with the following instructions:
The trial court may determine the defendant’s
competence nunc pro tunc if possible. If the trial court
cannot do so, the judgement and sentence should be
vacated and the case set for trial.
- 29 -
Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th DCA 2018) (citation
omitted).
I analyze the issue as follows:
ANALYSIS
I. The trial court’s failure to follow Florida Rule of Criminal
Procedure 3.210 violated Dortch’s constitutional right to
procedural due process.
It is first important to recognize that Dortch suffered the
deprivation of a fundamental constitutional right in the trial court.
This occurred when the trial court found a reasonable basis to
question Dortch’s competency7 and yet accepted Dortch’s guilty
plea without holding a competency hearing as required by Pate v.
Robinson, 383 U.S. 375, 378, 385-86 (1966) (holding that due
process8 requires that (1) a trial court must hold a competency
7. The trial judge granted defense counsel’s motion “to
determine the mental condition of the defendant” and appointed a
doctor to examine Dortch for the purpose of determining Dortch’s
competency to proceed. The trial judge made this determination in
reliance on defense counsel’s representation in a motion that he
made the motion “in good faith and on reasonable grounds to
believe that the Defendant is incompetent to proceed.”
8. See U.S. Const. amend. XIV, § 1 (“No State shall . . .
deprive any person of life, liberty, or property, without due process
- 30 -
hearing where the record reflects a bona fide doubt as to
defendant’s competence; and (2) that a state’s “procedures must be
adequate to protect this right”). 9
Pate establishes that where the record reflects a bona fide
doubt as to a defendant’s competency, the trial judge must hold a
hearing before proceeding to any material stage of the criminal
proceeding. Pate, 383 U.S. at 385-86. It also holds that Florida’s
procedures “must be adequate to protect this right.” Id. at 378.
Rule 3.210 was promulgated to implement this procedural right and
expressly mandates that courts follow through with a competency
determination, before conducting any material stage of the criminal
proceeding, after finding a reasonable basis to question a
defendant’s competency. See Fla. R. Crim. P. 3.210(b) (“If, at any
material stage of a criminal proceeding, the court of its own motion,
of law . . . .”). Florida’s constitution also affords each person the
same protection. Art. I, § 9, Fla. Const.
9. The majority rightly recognizes that Dortch’s claim is not a
substantive claim of incompetency but rather a claim that the trial
court denied him adequate procedures to protect his right not to be
tried while incompetent. Majority op. at 9; see Pate, 383 U.S. at
378-85.
- 31 -
or on motion of counsel for the defendant or for the state, has
reasonable ground to believe that the defendant is not mentally
competent to proceed, the court shall immediately enter its order
setting a time for a hearing to determine the defendant’s mental
condition, which shall be held no later than 20 days after the date
of the filing of the motion . . . .”).
Although trial courts have discretion in determining whether
reasonable grounds exist to believe a defendant to be incompetent,
Rodgers v. State, 3 So. 3d 1127, 1132 (Fla. 2009), they do not have
discretion to determine that reasonable grounds exist and then
proceed to a material stage of the proceeding without making the
required competency determination. Dougherty v. State, 149 So. 3d
672, 676 (Fla. 2014) (“Indeed, it is necessary for courts to observe
the specific hearing requirements set forth in [rules 3.210-3.212] in
order to safeguard a defendant’s due process right to a fair trial and
to provide the reviewing court with an adequate record on appeal.”).
Therefore, rule 3.210 is tightly aligned with the due process
clause, as construed in Pate, to assure procedural due process for
potentially incompetent criminal defendants. Because of this tight
alignment—both require the same hearing under the same
- 32 -
circumstance—a violation of the rule also constitutes a procedural
due process violation under Pate.
That this violation occurred in Dortch’s case is not in
question. The question is whether Dortch can seek relief on appeal.
In my view, rule 3.210 and the due process right it was adopted to
protect are meaningless unless they can be enforced.
II. The Florida Constitution guarantees Dortch the right to a
meaningful appeal.
Article V, section 4(b) of the Florida Constitution provides in
pertinent part that “[d]istrict courts of appeal shall have jurisdiction
to hear appeals, that may be taken as a matter of right, from final
judgments or orders of trial courts . . . not directly appealable to the
supreme court or a circuit court.” We have interpreted this
provision as affording criminal defendants a constitutional right to
an appeal. See McFadden v. State, 177 So. 3d 562, 566 (Fla. 2015)
(“Article V, section 4(b) [of the Florida Constitution], grants the
district courts jurisdiction to hear criminal appeals and affords
criminal defendants a constitutional right to an appeal.”); Harriel v.
State, 710 So. 2d 102, 103 (Fla. 4th DCA 1998) (“While our
supreme court has recognized that criminal defendants have no
- 33 -
federal constitutional right to a direct appeal, under article V,
section 4(b) of the Florida Constitution, there is constitutional
protection of the right to appeal.”) (citations omitted). The
Legislature—and our rules of procedure—may place reasonable
conditions upon this right “so long as they do not thwart the
litigants’ legitimate appellate rights.” Amends. to the Fla. Rules of
App. Proc., 696 So. 2d 1103, 1104 (Fla. 1996).
In addition to this limitation, by affording criminal defendants
a constitutional right to an appeal, the procedures used in deciding
direct appeals in Florida’s courts must comport with due process.
See Evitts v. Lucey, 469 U.S. 387, 393 (1985) (explaining that
although the United States Constitution “does not require States to
grant appeals as of right to criminal defendants seeking to review
alleged trial court errors,” if a State creates such a right, “the
procedures used in deciding appeals must comport with the
demands of the Due Process . . . Clause[] of the Constitution”).
Accordingly, a criminal defendant’s due process right to a
direct appeal, as secured by Florida’s constitution, requires that a
defendant who is being deprived of freedom as punishment for
illegal conduct have a meaningful appeal during which any
- 34 -
conviction secured through deprivation of a fundamental right can
be set aside and revisited in the trial court.
III. Applying rule 9.140(b)(2)(A)(ii)c.’s “preservation
requirement” would deny Dortch a meaningful appeal such
that, to satisfy due process on appeal, a fundamental-error
exception must be recognized.
In this case, Dortch’s own trial counsel invited the due process
violation by asserting a bona fide basis to question Dortch’s
competency, securing the trial court’s finding adopting the
assertion, asking that a hearing not be set at the time of the
finding, and then scheduling the plea without first addressing
Dortch’s competency with the trial court. Both common sense and
a fair reading of Pate dictate that the trial counsel’s actions in
assuring the due process violation cannot at the same time cause
waiver of the issue on appeal.
Common sense also dictates that it would not “comport with
the demands of the Due Process . . . Clause[],” Lucey, 469 U.S. at
393, to apply rule 9.140(b)(2)(A)(ii)c. as written, in this unique
context, because it would require a potentially incompetent
defendant to file his own pro se motion to withdraw plea to
“preserve” the issue. It should not require legal training to
- 35 -
recognize the fundamental unfairness of a rule that would require
independent action by a potentially incompetent criminal defendant
before appointed appellate counsel can vindicate a clear violation of
the procedure constitutionally required to assure that the defendant
was competent to enter his plea in the first instance. Although
important constitutional rights may be waived, see majority op. at
13 (noting Dortch’s apparent waiver of rule 3.210(b)’s required
hearing within twenty days), an incompetent defendant cannot do
so.
IV. It is irrelevant to the analysis that Dortch appeared
competent at the plea colloquy.
It is apparent from this record that Dortch was very likely
competent at the time he entered his plea. One might therefore
naturally see no problem with enforcing the preservation
requirement in this case—where it seems very likely that the trial
court would be able to make a nunc pro tunc finding of competency
such that the plea would still stand; no harm, no foul. However,
Pate also involved a defendant represented by counsel who
appeared competent during colloquies with the trial judge. Those
colloquies occurred at a different material stage of the proceeding
- 36 -
(during trial for Pate versus during a plea for Dortch). However,
that factual difference is immaterial. See Godinez v. Moran, 509
U.S. 389, 391 (1993) (holding that the competency standard for
pleading guilty is the same as the competency standard for
standing trial). Because it is the procedural deprivation itself that
constitutes the constitutional violation, Pate properly held that the
procedural deprivation warranted a reversal, even though Pate
appeared competent at trial.
Therefore, in this case, irrespective of whether it appears that
Dortch was fully competent, rule 3.210 does not allow counsel to
represent that his client is likely incompetent and then waive the
hearing requirement. 10 Nor does it allow a trial judge to order an
10. By contrast, Florida Rule of Criminal Procedure 3.216
allows private counsel appointed or retained to represent a
defendant adjudicated to be indigent or partially indigent and who
“has reason to believe that the defendant may be incompetent to
proceed,” Fla. R. Crim. P. 3.216(a) (emphasis added), to request
appointment of a single expert to evaluate the defendant and
“report only to the attorney for the defendant,” id. Rule 3.216 then
leaves it to defense counsel to raise the issue of competency with
the trial court after receiving results from the confidential
evaluation, if there is a basis to do so. Id.; see Crosby v. State, 175
So. 3d 382, 383 (Fla. 5th DCA 2015) (explaining that trial courts
are not required to hold competency hearings after appointment of
an expert pursuant to rule 3.216 and “unless the defendant’s
attorney decides to actually raise the defense of insanity or assert
- 37 -
evaluation without setting a competency hearing. Whether Dortch
was competent or incompetent at the time of his plea is irrelevant to
the legal issue presented. Rather, to vindicate his due process
right, as required by Pate, we must recognize a fundamental-error
exception to the preservation requirement as held by the Fourth
District.
V. Recognizing a fundamental-error exception here is also
consistent with our case law recognizing a similar exception in
a comparable case.
Our decision in State v. T.G., 800 So. 2d 204 (Fla. 2001),
further underscores that a fundamental-error exception must
apply. In T.G., we recognized an exception to a similar preservation
requirement for cases in which the record reflects that the trial
court failed to follow the procedural rule designed to assure that
incompetence to proceed, no further proceeding regarding the
defendant’s mental status is required by rule 3.216”). The motion
in this case cannot be fairly understood as a motion pursuant to
rule 3.216 because the motion states that it is made pursuant to
rule 3.210 and because counsel asserted a good faith basis for
believing that Dortch was actually incompetent, consistent with rule
3.210, and not simply that Dortch “may be incompetent,” as
required when seeking appointment of an expert pursuant to rule
3.216. In addition, although Dortch had been adjudicated to be
indigent, he was not represented by an appointed private counsel.
- 38 -
waivers of counsel are made freely and voluntarily before accepting
the plea. Id. at 211-12. We reasoned as follows:
Because of this unique concern for juveniles who
enter pleas without the benefit of counsel, we find that it
is appropriate to recognize a narrowly drawn and
extremely limited exception [to the general preservation
requirement in this context]. “Fundamental error” occurs
in instances when juveniles enter uncounseled pleas
where the trial court failed to comply with the
requirements of rule 8.165. In these circumstances if the
waiver of counsel is invalid as a matter of law, it follows
that the guilty plea entered without advice of counsel
should also be deemed involuntary as a matter of law.
Thus, if it appears from the face of the record that the
trial court did not comply with the specific procedures of
rule 8.165, including conducting a “thorough inquiry into
the child’s comprehension of that offer [of the assistance
of counsel] and the capacity to make that choice
intelligently and understandingly,” any subsequent plea
should be deemed involuntary as a matter of law and the
appellate court would have the authority to reverse
absent a motion to withdraw or a contemporaneous
objection.
Id. at 213 (second alteration in original).
Similarly, there are unique concerns related to individuals
whose competence is called into question and procedural rules that
judges must follow to protect defendants’ constitutional rights when
these concerns are present. “While not all errors of constitutional
magnitude constitute fundamental error,” id. at 212, an error in
failing to hold a due-process-required competency hearing before
- 39 -
accepting a plea “goes to the foundation of the case,” Jaimes v.
State, 51 So. 3d 445, 448 (Fla. 2010) (quoting Sanford v. Rubin, 237
So. 2d 134, 137 (Fla. 1970)), because it constitutes a denial of the
very process that Florida has implemented to assure that
defendants have the mental capacity to understand the proceedings
against them after their competence is reasonably questioned by
the court.
The majority’s rejection of the approach we took in T.G.
because “every exception begets demands for more,” majority op. at
25-26, misses the point. 11 Pate appropriately placed the burden on
trial judges to protect a defendant whose competence a judge has
reason to question. Pate, 383 U.S. at 385; see also id. at 388(Harlan, J., dissenting) (agreeing with the general proposition that
when a defendant’s incompetence has become “sufficiently
manifest,” it “denies [a defendant] due process for the trial court to
11. Contrary to the majority’s assertion that allowing Dortch’s
claim to be heard on direct appeal would “spawn even more
exceptions . . . and breed uncertainty,” majority op. at 28, an
exception would only be necessary in the rare case where, as here,
the record reflects a bona fide question as to the defendant’s
competence.
- 40 -
fail to conduct a hearing on that question on its own initiative”)
(emphasis added). Accordingly, appellate counsel should be able to
seek relief on appeal when a trial judge does not fulfill his obligation
to hold a required competency hearing.
I also disagree with the majority’s conclusion that a
fundamental-error exception is unwarranted here “given the overall
framework of the relevant rules of procedure.” Majority op. at 22.
Enacting a rule similar to Florida Rule of Criminal Procedure
3.800(b)(2), the rule discussed by the majority, would allow trial
courts to address noncompliance with rule 3.210 while protecting
the due process rights of defendants who lack the mental capacity
to enter a plea. Rule 3.800(b)(2) allows appellate counsel to file a
motion to correct a sentencing error in the trial court after trial
counsel files a notice of appeal. Appellate counsel must serve the
motion in the trial court “before the party’s first brief is served,” and
counsel is also required to file a “notice of pending motion to correct
sentencing error . . . in the appellate court, which notice
automatically shall extend the time for the filing of the brief until 10
days after the clerk of circuit court transmits the supplemental
- 41 -
record” of the proceedings on the motion to correct sentencing
error. Fla. R. Crim. P. 3.800(b)(2).
It is only because rule 3.800(b)(2) gives appellate counsel the
tools needed to have sentencing errors corrected by the trial court—
during the appeal—that we can preclude raising a fundamental
sentencing error in the initial brief, as we did in Jackson v. State,
983 So. 2d 562 (Fla. 2008), and still comply with a defendant’s due
process right to a meaningful appeal.
Of course, Dortch’s appellate counsel did not have the benefit
of a rule such as 3.800(b)(2), and where, as in Dortch’s case, there
is a bona fide issue of the defendant’s mental competency apparent
on the face of the record, it is wholly inadequate, and violative of
due process, to bar appellate counsel from raising, on direct appeal,
the trial court’s failure to comply with rule 3.210. Such a bar
leaves the potentially incompetent defendant to seek relief years
later, without the benefit of counsel, after suffering a prolonged
deprivation of liberty.
Moreover, if incompetent, the defendant would be
extraordinarily unlikely to vindicate the due process violation
suffered, particularly in light of our precedent requiring claims
- 42 -
regarding competency to be raised on direct appeal. See Nelson v.
State, 43 So. 3d 20, 33 (Fla. 2010) (explaining that the defendant’s
claim that he was tried and convicted while mentally incompetent
was “procedurally barred because he failed to raise it on direct
appeal”).
Therefore, the majority’s decision leaves potentially
incompetent defendants like Dortch with no effective remedy.
CONCLUSION
Today’s decision renders our procedures effectively inadequate
to protect the due process right recognized in Pate by barring
appellate counsel from seeking relief on appeal where the trial court
does not fulfill its obligation under rule 3.210 to hold a required
competency hearing, proceeds to accept a plea, and the potentially
incompetent defendant does not move to withdraw the plea. While
it appears from the record that Dortch did possess the necessary
mental capacity to enter his plea voluntarily, that satisfies neither
the procedural requirements of rule 3.210 nor the constitutional
right that the rule is designed to protect. For these reasons, I would
approve the Fourth District’s decision and its remand instructions.
POLSTON and LABARGA, JJ., concur.
- 43 -
Application for Review of the Decision of the District Court of Appeal
– Certified Direct Conflict of Decisions
Fourth District - Case Nos. 4D16-2815 and 4D16-2816
(Okeechobee County)
Ashley Moody, Attorney General, Tallahassee, Florida, Celia
Terenzio, Bureau Chief, and Joseph D. Coronato, Jr., Assistant
Attorney General, West Palm Beach, Florida,
for Petitioner
Carey Haughwout, Public Defender, and Benjamin Eisenberg,
Assistant Public Defender, Fifteenth Judicial Circuit, West Palm
Beach, Florida,
for Respondent
- 44 -