Peterson v. State

386 So. 2d 576, 1980 Fla. App. LEXIS 16677

Opinion

PER CURIAM.

We have read the briefs filed by counsel and reviewed the record and it appears to us that the trial court was presented with reasonable grounds to believe that appellant was not mentally competent to stand trial or be adjudicated in violation of her probation. Accordingly, the, trial judge should have granted the motion for continuance and, upon receipt of the report of the third psychiatrist appointed to examine appellant, the trial judge should have held an evidentiary hearing to determine if appellant was competent to proceed with a hearing on charges of violating her probation.

Accordingly, in accordance with the procedure suggested in United States v. Boca-Alvarez, 451 F.2d 843 (5th Cir. 1971), this cause is remanded for further proceedings. If, upon an evidentiary hearing, the trial court determines nunc pro tunc that appellant was competent at the time of the hearing on December 8,1978, then the adjudication and sentence appealed from shall stand affirmed. On the other hand, if the court determines the appellant was incompetent at the time of her probation violation hearing, then the adjudication and sentence should be vacated and the appellant dealt with according to law.

REMANDED.

DOWNEY, BERANEK and HERSEY, JJ., concur.