237 So. 3d 1165
Fla. Dist. Ct. App.2018Background
- Appellant (Gerome Berry) was convicted and sentenced for selling cocaine within 1,000 feet of an assisted living facility.
- Before trial, defense counsel filed a suggestion of incompetence citing age, distrust of counsel, and paranoia about collusion with the prosecutor.
- The trial court ordered a competency evaluation by an expert. Defense counsel later moved to withdraw; new counsel substituted in.
- The record contains no filed expert report, no competency hearing, and no written adjudication of competence before trial.
- Appellant appealed, arguing the court erred by failing to hold a competency hearing and adjudicate competence; the court rejected other arguments without discussion.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by failing to hold a competency hearing and adjudicate competency before trial | Trial court failed to follow rule-based obligations after counsel’s suggestion of incompetence; appellant was tried without adjudication | (Implicit) No reversible error or the process was adequate | Reversed and remanded: court must adjudicate competency; failure to hold hearing/adjudicate was reversible error |
| Whether retroactive competency determination can cure the error | Appellant did not contest retroactive determination; court may make retroactive finding if evidence supports it | State likely argued retroactive determination could obviate new trial | Court recognized retroactive competency determination is permissible; if not possible, court must adjudicate present competency and, if competent, conduct new trial |
Key Cases Cited
- Zern v. State, 191 So. 3d 962 (Fla. 1st DCA 2016) (procedural due process requires procedures to protect against trial while incompetent)
- Dougherty v. State, 149 So. 3d 672 (Fla. 2014) (trial court must observe Florida Rules of Criminal Procedure governing competency)
- Mairena v. State, 6 So. 3d 80 (Fla. 5th DCA 2009) (competence test: consult with counsel rationally and understand proceedings)
- Hill v. State, 473 So. 2d 1253 (Fla. 1985) (same competence standard)
- Avilesrosario v. State, 152 So. 3d 851 (Fla. 4th DCA 2014) (weight given to counsel’s expressed doubts about client competence)
- Calloway v. State, 651 So. 2d 752 (Fla. 1st DCA 1995) (attorney observations relevant to competence inquiries)
- Rodgers v. State, 3 So. 3d 1127 (Fla. 2009) (trial court has discretion to determine whether reasonable grounds exist for a competency hearing)
- Brooks v. State, 180 So. 3d 1094 (Fla. 1st DCA 2015) (rules require setting competency hearing when reasonable grounds exist)
- Cotton v. State, 177 So. 3d 666 (Fla. 1st DCA 2015) (trial court may make retroactive competency determination if pretrial evidence supports competence)