TORYANNI M. NELSON v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: September 17, 2021
• Docket: 19-3593
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

TORYANNI M. NELSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D19-3593

September 17, 2021

Appeal from the Circuit Court for Pinellas County; William H. Burgess, Judge.

Howard L. Dimmig, II, Public Defender, and Joanna B. Conner, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.

ORDER RELINQUISHING JURISDICTION

Toryanni M. Nelson appeals from his judgment and sentence

for burglary of a dwelling, arguing that the trial court erred by failing to hold a competency hearing and by failing to enter a

written order determining his competence to proceed. The Attorney

General appropriately concedes error. We relinquish jurisdiction to

the trial court for further proceedings consistent with this order.

Mr. Nelson's trial counsel informed the trial court that she

questioned Mr. Nelson's ability to assist in his defense and asked

the trial court to appoint an expert to evaluate his competence to

proceed. The appointed expert found Mr. Nelson incompetent to

proceed but also indicated in his report that it was possible Mr.

Nelson was malingering, so the trial court appointed two additional

experts, both of whom found Mr. Nelson competent.

The trial court set a "competency status check," but Mr.

Nelson did not receive notice of the hearing and failed to appear.

The hearing was reset, but Mr. Nelson again failed to appear, and

the trial court issued a capias for his arrest. The record does not

reflect that the trial court addressed Mr. Nelson's competence

during any of the pretrial hearings following his arrest.

"A criminal defendant has a procedural due process right to

the observance of procedures adequate to protect his or her right

not to be tried or convicted while incompetent to stand trial." Zern

2 v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016); see also Drope v.

Missouri, 420 U.S. 162, 172 (1975) ("[T]he failure to observe

procedures adequate to protect a defendant's right not to be tried or

convicted while incompetent to stand trial deprives him of his due

process right to a fair trial."). These procedures are codified in

Florida Rules of Criminal Procedure 3.210, 3.211, and 3.212. Rule

3.210(b) is interpreted to require that "once the 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, 191 So. 3d at 964; see also Charles v. State, 223

So. 3d 318, 328 (Fla. 4th DCA 2017) ("Once the trial court appoints

experts to examine the defendant's competency, the trial court may

not proceed against the defendant without holding a competency

hearing and ruling on the defendant's competency.").

The appropriate remedy for this error is a retroactive

determination of competency, if it is possible in a manner that

assures due process. King v. State, 263 So. 3d 244, 246 (Fla. 2d

DCA 2019). Mr. Nelson's record on appeal indicates such a

determination may be possible. See id. (holding that a retroactive

competency determination "may be possible if 'there are a sufficient

3 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' " (quoting Dougherty v.

State, 149 So. 3d 672, 679 (Fla. 2014))). We therefore relinquish

jurisdiction to the trial court for sixty days from the date of this

order and direct the trial court to conduct a nunc pro tunc

competency hearing if it is possible in a manner that assures Mr.

Nelson due process of law. See Cramer v. State, 213 So. 3d 1028,

1029 (Fla. 2d DCA 2017). At the end of the relinquishment period,

counsel for the parties shall file a status report with this court to

indicate the outcome of the competency hearing and to advise this

court of the need for further proceedings.

SLEET, LUCAS, and STARGEL, JJ., Concur.

Order subject to revision prior to official publication.