Kendrick Silver v. State of Florida
193 So. 3d 991
| Fla. Dist. Ct. App. | 2016Background
- Kendrick Silver was convicted after a jury trial of three counts of attempted second-degree murder, and one count each of petit theft and assault; this Court previously affirmed on direct appeal.
- Silver filed a pro se petition alleging ineffective assistance of appellate counsel (IAAC), claiming appellate counsel failed to raise that the trial court erred by not holding a competency hearing.
- The trial court had entered orders appointing two experts to evaluate Silver's competency under Fla. R. Crim. P. 3.211, directing written evaluations to the court and counsel.
- The appellate record contains the appointment orders but no expert reports, no competency hearing, and no judicial adjudication of Silver's competence before trial.
- The State did not rebut Silver's allegation that the experts never examined him; the absence of reports and adjudication was dispositive to the competence issue.
- The court granted the habeas petition in part, vacating the convictions and sentences and remanding with instructions for either a nunc pro tunc competency determination (if supported by contemporaneous evidence) or, if not possible, adjudication of current competency and a new trial if competent.
Issues
| Issue | Silver's Argument | State's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for failing to argue the trial court erred by proceeding to trial without a competency hearing after appointing experts | Appellate counsel should have raised that appointment of experts created "reasonable grounds" requiring a competency hearing, and omission prejudiced Silver | State did not dispute facts; argued that if error existed, a retroactive competency inquiry could cure the defect | Court found merit: appointment of experts indicated reasonable grounds; appellate counsel's omission was prejudicial and entitled Silver to relief |
| Appropriate remedy/remand procedure when no competency hearing or reports are in the record | Silver sought reversal and new trial unless competency could be retroactively established | State argued trial court could make a retroactive (nunc pro tunc) competency determination if contemporaneous evidence supports it | Court directed that on remand the trial court may perform a retroactive competency determination if sufficient contemporaneous evidence exists; otherwise it must adjudicate present competency and, if competent, hold a new trial |
Key Cases Cited
- Reynolds v. State, 177 So. 3d 296 (Fla. 1st DCA 2015) (appointment of expert implies reasonable grounds to question competence)
- Monte v. State, 51 So. 3d 1196 (Fla. 4th DCA 2011) (court must hold competency hearing when reasonable grounds exist; discusses nunc pro tunc inquiry)
- Cotton v. State, 177 So. 3d 666 (Fla. 1st DCA 2015) (retroactive competency inquiry may suffice if contemporaneous evidence supports it)
- Tingle v. State, 536 So. 2d 202 (Fla. 1988) (failure to conduct competency hearing generally requires reversal and new trial after competency is determined)
- Dougherty v. State, 149 So. 3d 672 (Fla. 2014) (nunc pro tunc competency evaluation permissible when sufficient contemporaneous expert and lay evidence exists)
- Mason v. State, 489 So. 2d 734 (Fla. 1986) (framework for retroactive competency determinations)
- Carrion v. State, 859 So. 2d 563 (Fla. 5th DCA 2003) (no discretion: court must hold competency hearing when reasonable grounds exist)
- Mairena v. State, 6 So. 3d 80 (Fla. 5th DCA 2009) (same principle on mandatory competency hearing)