FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-3361
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PAMELA DENISE BOREN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.
December 27, 2018
RAY, J.
In this single-issue appeal, Pamela Boren contends the trial
court fundamentally erred by failing to hold a competency hearing
or enter a written order of competency despite having reasonable
grounds to believe she was incompetent to stand trial. The State
properly concedes error.
Prior to trial, defense counsel moved for a competency
evaluation under Florida Rule of Criminal Procedure 3.210(b). As
grounds for counsel’s belief that Boren was not mentally competent
to proceed, counsel alleged that Boren did not seem to “understand
the roles of defense counsel, prosecutor, jury, and judge,” had
trouble communicating with counsel, and appeared unlikely to
conduct herself appropriately at trial. Counsel also alleged that
Boren reported she had been diagnosed as bipolar and was
experiencing hallucinations. The trial court granted the motion
and appointed an expert to examine Boren. The record is silent on
what happened next regarding Boren’s competency. The case
proceeded to trial, and the jury found Boren guilty of the charged
offenses.
Once a court “has reasonable grounds to question the
defendant’s competency, the court has no choice but to conduct a
hearing to resolve the question.” Zern v. State,
191 So. 3d 962, 964
(Fla. 1st DCA 2016); see also Fla. R. Crim. P. 3.210(b) (requiring
trial court to set a competency hearing within twenty days if
defense counsel, the state, or the trial court has reasonable
grounds to believe that a defendant is not mentally competent to
proceed). The trial court is duty-bound at that point to make an
independent determination of the defendant’s competency and to
enter a written order if the defendant is found competent to
proceed. Dougherty v. State,
149 So. 3d 672, 677–78 (Fla. 2014); see
also Fla. R. Crim. P. 3.212(b). These requirements are designed “to
safeguard a defendant’s due process right to a fair trial and to
provide the reviewing court with an adequate record on appeal.”
Dougherty, 149 So. 3d at 676.
Here, nothing in the record shows that a hearing was held or
that the trial court ruled on Boren’s competency. We therefore
remand for a retroactive determination, if possible. Zern, 191 So.
3d at 965. If the court finds that Boren was competent at the time
of trial, it should enter a nunc pro tunc order memorializing this
finding with no change in the judgment or sentence. If a retroactive
determination is not possible, or if the court finds that Boren was
not competent, the court must hold a new trial provided that Boren
is competent to proceed at that point in time.
REVERSED and REMANDED with instructions.
ROBERTS and WINSOR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Jasmine Russell, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Steven E. Woods,
Assistant Attorney General, Tallahassee, for Appellee.
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