NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
VERONICA ELDER, )
)
Appellant, )
)
v. ) Case No. 2D13-3440
) 2D17-551
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed April 26, 2019.
Appeal from the Circuit Court for
Hillsborough County; Tom Barber, Judge.
Howard L. Dimmig, II, Public Defender,
and Tosha Cohen, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and C. Todd Chapman,
Assistant Attorney General, Tampa, for
Appellee.
BLACK, Judge.
Veronica Elder challenges the trial court's "reinstated" judgment and
sentence which was rendered on remand from this court's reversal of the judgment and
sentence wherein we held that Elder's plea—the basis for the judgment and sentence—
was invalid. See Elder v. State,
198 So. 3d 827, 827-28 (Fla. 2d DCA 2016). We treat
this appeal as a motion to enforce the mandate in Elder's previous case, Case No.
2D13-3440, and grant it. As a result, we dismiss the appeal in Case No. 2D17-551.
I. Background
In October 2011, Elder was charged with attempted murder of a law
enforcement officer, obstruction of an officer with violence, fleeing and attempting to
elude, providing a false name to a law enforcement officer, and driving with a
suspended or revoked license. A competency evaluation was ordered in December
2011, and the trial court found Elder incompetent to proceed in January 2012.
In May 2012, the court entered an order for a competency evaluation; the
court appointed Dr. Alberts and Dr. Blitch to evaluate Elder. Both doctors' reports
indicated that as of May 2012, Elder was competent. In July 2012, at what appears to
have been a status hearing, defense counsel advised the court that Elder "was seen for
a competency evaluation. Reports have come back that she is competent to proceed.
We are at this time stipulating to competency." The court made no independent
determination regarding Elder's competency but did request that defense counsel
provide a proposed order finding Elder competent. No such order was entered.
In June 2013, more than one year after the competency evaluations had
been completed, Elder entered a guilty plea to the charges in exchange for a sentence
of eighteen years in prison on the attempted murder charge, five years in prison on the
obstruction and fleeing charges, and time served on the remaining two charges.
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Elder filed a notice of appeal of her judgment and sentence, arguing that
the trial court erred in accepting her plea without first adjudicating her competent to
proceed. See Elder, 198 So. 3d at 827. Because retrospective competency
determinations may be made under certain circumstances, see Dougherty v. State,
149
So. 3d 672, 679 (Fla. 2014), this court relinquished jurisdiction during the pendency of
the appeal in order to allow the trial court to assess Elder's competency at the time she
entered the plea.
Although not addressed in the original Elder opinion, during the
relinquishment period this court granted multiple requests from the trial court for
extensions of time in order to evaluate Elder's competency at the time of the plea. The
trial court appointed four doctors to conduct competency evaluations of Elder,
specifically requesting then-current competency determinations and determinations as
of the time of the plea, June 2013.
In January 2016, the trial court rendered an order finding Elder
incompetent at that time and finding that it was unable to determine Elder's competency
retrospectively to the time of her plea:
This court's attempt to retrospectively determine Ms.
Elder's competency at the time she entered her plea proved
to be quite difficult. . . . [T]he court sought to procure the lay
witness testimony of Kenneth Richardson, Esq., Ms. Elder's
private trial counsel at the time she entered her plea. But
Mr. Richardson had since relocated to Puerto Rico and the
State informed the Court it would need more time before it
could bring Mr. Richardson back for a hearing. The court
thus requested a ninety-day extension of jurisdiction to
comply with the Mandate, which [was] granted.
....
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On January 20, 2016, the court held a competency
hearing. The parties stipulated to the admission of the
reports prepared by Dr. Alberts, Dr. Blitch, Dr. Otto, and Dr.
Taylor into evidence. The reports collectively make it
abundantly clear that it is not possible to determine Ms.
Elder's competency to proceed retrospectively. . . . In light of
the expert reports, the court concluded as follows: (1) Ms.
Elder is currently incompetent to proceed, and (2) it is not
possible to ascertain whether she was competent at the time
she entered her guilty plea.
(Emphasis added.)
In our opinion reversing Elder's judgment and sentence, this court stated
that "[b]ased on the doctors' evaluations, the trial court found that Elder is presently
incompetent and that it is not possible to determine her competency retroactively."
Elder, 198 So. 2d at 827. We then concluded that "[b]ecause Elder was not adjudicated
to be competent at the time she entered her plea, her plea was invalid," and we
reversed and remanded "for further proceedings or such other action as may be
appropriate." Id. at 827-28 (emphasis added). The original Elder opinion therefore
necessitated the vacatur of the judgment because Elder's plea was held to be invalid;
Elder had not been adjudged competent at the time of the plea and a nunc pro tunc
determination of competency could not be made. Our "remand for further proceedings
or such other action as may [have] be[en] appropriate" was necessary in light of Elder's
incompetency to proceed at that time. The opinion issued March 9, 2016. Id. at 827.
Following remand from this court, hearings were held on March 23, 2016,
and April 22, 2016. The transcript of the March 23 hearing indicates that the prosecutor
believed that the retrospective competency issue was still under consideration by the
trial court and that the trial court could send an order to this court for "directions as to
how to proceed with [Elder] now because she's incompetent [again]." The prosecutor
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suggested that the trial court ask this court to "correct" the opinion. The trial court,
however, decided to set a hearing "to get into this in more details [sic] because this is a
mess." Defense counsel inquired as to what the hearing would address because the
retrospective competency issue had already been determined by this court in the
opinion reversing Elder's judgment and sentence.
At the April 22 hearing, the prosecutor argued that the testimony of Mr.
Richardson, Elder's former counsel, could impact the trial court's determination of
retrospective competency. Because Mr. Richardson was present at the hearing, the
court entertained his testimony. Mr. Richardson testified, over many objections by
defense counsel, that Elder appeared competent to him during his representation of her
in 2013. He agreed that he had not presented an order of competency to the court and
that he did not check the record to determine whether an order adjudicating Elder
competent had been rendered. Mr. Richardson stated that he had worked in Puerto
Rico from August 2013 through September 2015. His testimony established that he
was present in Florida for at least four months prior to the trial court's order advising this
court that a retrospective competency determination could not be made.
Following Mr. Richardson's testimony, the court and the attorneys
discussed what could be done, given this court's opinion. Defense counsel asserted
that our ruling was the law of the case, while the prosecutor suggested that the trial
court send this court a request for reconsideration in light of Mr. Richardson's
testimony.1 Defense counsel pointed out that there had been multiple hearings
1We
note that such a request would have been stricken as unauthorized.
See Hampton v. State,
988 So. 2d 103, 105 (Fla. 2d DCA 2008) (discussing a
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between Mr. Richardson's return to Florida and the court's order in January 2016 at
which Mr. Richardson could have testified had the attorneys handling the case called
upon him to do so.
Ultimately, because the prosecutor, defense counsel, and the court
believed Elder to be then incompetent, the trial court ordered Elder to the State hospital.
The court also set a status hearing to address the retrospective competency issue.
After the status hearing, on June 24, 2016, the court entered the "Order Retrospectively
Finding Defendant Competent; and Order Reinstating Judgment and Sentence." The
June order states that the matter was before the court to address Elder's competency at
the time she entered a guilty plea "pursuant to an order from the Second District." It
also states that this court "relinquished jurisdiction to [the trial court] to address [Elder's]
competency at the time she entered her plea." The order goes on to provide that "new
evidence regarding [Elder's] competency has recently come to light, which neither [the
trial court] nor the Second District had the benefit of considering when issuing its
previous rulings." The court found that because "retrospective competency can be
established through lay witness testimony, and Mr. Richardson provided such testimony
at the April 22, 2016, evidentiary hearing . . . the court is now convinced that [Elder] was
in fact competent when she entered her plea on June 11, 2013." The court
acknowledged that the experts were unable to make a retrospective competency
determination.
competency issue and stating "we must note our disapproval of the trial judge's
'Response to Mandate,' which we strike as unauthorized").
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The order concludes with the finding that "[j]ustice would not be served if
[Elder] were to benefit from the fact that her lawyer indicated to the presiding judge that
he was going to submit a proposed order finding her competent, but failed to do so."2
The court then purported to reinstate the judgment and sentence based upon the June
2013 plea agreement. At the time of "reinstatement," Elder remained incompetent.
Elder moved for reconsideration of the order finding her retrospectively
competent. The motion alleged that Mr. Richardson's testimony was insufficient
evidence upon which to base a competency determination and that his testimony
violated attorney-client privilege. A hearing was held on January 6, 2017, at which the
court denied the motion for reconsideration without elaboration. At that hearing, the
court also considered competency testimony from experts and found that Elder was
then competent.
II. Analysis
Elder asserts that the trial court failed to follow the mandate of this court in
the original Elder opinion. We agree.
Where this court has issued a directive, "the circuit judge [is] legally
obliged to follow it; indeed he [is] powerless to do otherwise." Hampton v. State,
988
So. 2d 103, 105 (Fla. 2d DCA 2008) (quoting McGlade v. State,
941 So. 2d 1185, 1189
(Fla. 2d DCA 2006)). That is because the trial court's role in carrying out an appellate
2In the factual statements within the order, the court incorrectly asserts
that the prior judge "orally announced that she found [Elder] to be competent." The
prior judge made no oral pronouncement or any determination as to competency. She
only asked for an order with that finding for her signature, which is insufficient. See
Moulton v. State,
230 So. 3d 934, 937 (Fla. 2d DCA 2017) ("[T]he court may not rely
solely on the parties' stipulation to competency, and the record must be clear that the
court has made an independent determination of the defendant's competency.").
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court's mandate is purely ministerial. See Rodriguez v. State, 924 So. 2d 985, 986 (Fla.
2d DCA 2006) (citing Straley v. Frank,
650 So. 2d 628, 628 (Fla. 2d DCA 1994)).
This court reversed the judgment and sentence because in the absence of
an adjudication of competency at the time of Elder's plea and given the trial court's
inability to make a retrospective competency determination during the pendency of
Elder's appeal, Elder's 2013 plea was invalid. Elder, 198 So. 3d at 827-28. Yet, the
basis of the "reinstated" judgment and sentence is that same plea.
Nothing in the Elder opinion authorized the trial court to revisit the
retrospective competency issue. Cf. Parcilla v. State,
257 So. 3d 156, 157 (Fla. 5th
DCA 2018) ("We reverse and remand for the trial court to determine whether it can
conduct a nunc pro tunc hearing regarding Parcilla's competency at the time of trial. If it
is possible to do so, and the court determines that Parcilla was competent, then it shall
enter a nunc pro tunc written order adjudicating him competent. If the court determines
that Parcilla was incompetent, or if the court is unable to conduct a hearing, it shall
vacate Parcilla's judgment and sentence." (citing Rumph v. State, 217 So. 3d 1092,
1094-96 (Fla. 5th DCA 2017))). This court's mandate did not allow for reconsideration
of whether the plea was appropriately accepted; we had already determined that the
plea was invalid. Cf. Hilliard v. State,
169 So. 3d 264, 266 (Fla. 2d DCA 2015) ("We
thus remand this case to the trial court for an evidentiary hearing to determine whether
Mr. Hilliard's absence from his trial and sentencing hearing was voluntary or involuntary.
Procedurally, we reverse the judgments and sentences to facilitate this hearing and its
possible appellate review. If the trial court determines that Mr. Hilliard's absence from
trial was voluntary, it should enter an appropriate order denying the motion and it should
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reinstate the judgments and sentences. This court, upon timely notice of appeal from
the reinstated judgments and sentences, will review that order.").
The further proceedings and actions contemplated by the original Elder
opinion necessarily concerned Elder's competency moving forward because the effect
of the opinion was to determine that Elder remained incompetent; no order finding her
competent had yet been rendered. Thus, on remand, the trial court could only take
action related to determining whether Elder was then-currently competent because a
trial court cannot proceed against an incompetent defendant. See Fla. R. Crim. P.
3.210(a) ("A person accused of an offense . . . who is mentally incompetent to proceed
at any material stage of a criminal proceeding shall not be proceeded against while
incompetent.").
Our ruling invalidating Elder's plea "had the effect of no plea ever having
been entered." See Miles v. State, 620 So. 2d 1075, 1076 (Fla. 2d DCA 1993); see
also State v. McClain,
509 So. 2d 1360, 1361 (Fla. 2d DCA 1987) ("When the court set
aside McClain's original plea, it was as if a plea had never been entered ab initio, and
the state had the option of prosecuting the defendant on the original charges." (citation
omitted) (citing Snell v. State, 388 So. 2d 1353, 1354 (Fla. 5th DCA 1980))). There was
nothing for the court to reinstate.3 This court's conclusion that Elder's plea was invalid is
the law of the case as to her competency at the time of the June 2013 plea. See
3We note that at the time the court held the competency hearing on
remand, Elder remained incompetent. Likewise, at the time the court purported to
reinstate the judgment and sentence Elder was incompetent. The court was without
authority to proceed against Elder at either of these times. See McCroan v. State,
148
So. 3d 548, 549 (Fla. 1st DCA 2014) (granting motion to enforce mandate and "mak[ing]
it explicitly clear that the court is without authority to proceed against McCroan until the
court finds that his competency has been restored").
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McGlade,
941 So. 2d at 1189. The trial court failed to adhere to this court's mandate
and exceeded its authority in revisiting the retrospective competency determination and
in reinstating the judgment and sentence.
Finally, although Elder primarily focuses on the trial court's failure to follow
this court's mandate, she also argues that even if the new hearing on remand had been
permitted pursuant to this court's prior opinion, the evidence presented was insufficient
to support the court's finding of competency. We agree.
"Generally, a proper hearing to determine whether competency has been
restored after a period of incompetence requires 'the calling of court-appointed expert
witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination
of competence to proceed, and the entry of an order finding competence.' " Dougherty,
149 So. 3d at 677 (quoting Jones v. State,
125 So. 3d 982, 983-84 (Fla. 4th DCA
2013)). Dougherty instructs that "a nunc pro tunc competency evaluation c[an] be done
where 'there are a sufficient number of expert and lay witnesses who have examined or
observed the defendant contemporaneous with trial available to offer pertinent evidence
at a retrospective hearing.' " Id. at 679 (quoting Mason v. State,
489 So. 2d 734, 737
(Fla. 1986)). In this case, four experts concluded that they could not reach opinions as
to Elder's retrospective competency and had varying degrees of certainty as to her then-
current incompetency. Their respective evaluations were completed two years after the
plea and were based on reports of competency entered a year prior to the plea. The
only other witness to provide pertinent evidence was Mr. Richardson. His testimony
occurred almost three years after the plea. It is true that "[e]ven in a situation where all
the experts opine that a defendant is competent, the trial court could presumably
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disagree based on other evidence such as the defendant's courtroom behavior or
attorney representations." Id. at 678. However, the experts' opinions are advisory, and
we have found no case where the court independently determined competency in the
face of the experts' opinions otherwise. Cf. Washington v. State,
162 So. 3d 284, 289
(Fla. 4th DCA 2015) ("The trial court should not find a defendant competent where the
record provides no reason to reject overwhelming and uncontested expert testimonies
to the contrary." (quoting Duncan v. State, 115 So. 3d 1121, 1121 (Fla. 1st DCA
2013))). In this instance, the trial judge determining retrospective competency had no
personal experience with Elder at the time of the plea as he was not the presiding judge
at that time. Thus, the trial judge's determination of retrospective competency was
based entirely on his current perception of Elder and on counsel's testimony. This is
exactly the situation that Dougherty warned against: due process concerns resulting
from the examination of a cold record and speculation. See 149 So. 3d at 676 ("[I]t is
necessary for courts to observe the specific hearing requirements set forth in the rules
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."); cf. Mason, 489 So. 2d at 737
("The experts here will not have to rely upon a cold record or recent examination of the
appellant, and the chances are therefore decreased that such a nunc pro tunc
evaluation will be unduly speculative." (citing United States v. Makris, 398 F. Supp. 507,
511-12 (S.D. Tex. 1975))). The due process concern is compounded when the
possibility of counsel's ineffective assistance is considered, as pointed out by Elder.
III. Conclusion
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This court "is vested with all the power and authority necessary for
carrying into complete execution all of its judgments, decrees, orders, and
determinations in the matters before it agreeable to the usage and principles of law." §
35.08, Fla. Stat. (2018). Accordingly, the motion to enforce mandate is granted. Elder's
judgment and sentence is reversed and shall be vacated on remand. Upon a
determination of competency and the entry of an order adjudicating Elder competent,
the action against Elder may proceed; however, it may proceed only as if the June 2013
plea had never been entered into, ab initio. See McClain,
509 So. 2d at 1361.
NORTHCUTT and BADALAMENTI, JJ., Concur.
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