Tush-ee Lewis Hunter v. State of Florida

174 So. 3d 1011
CourtDistrict Court of Appeal of Florida
DecidedMay 11, 2015
Docket1D13-0862
StatusPublished
Cited by17 cases

This text of 174 So. 3d 1011 (Tush-ee Lewis Hunter v. State of Florida) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tush-ee Lewis Hunter v. State of Florida, 174 So. 3d 1011 (Fla. Ct. App. 2015).

Opinions

MARSTILLER, J.

Tush-ee Lewis Hunter appeals his convictions and sentences for robbery with a deadly weapon and aggravated assault on a person 65 or older asserting the following errors by the trial court: (1) failure to conduct a competency hearing and enter a written order finding Hunter competent for trial after previously adjudicating him incompetent to proceed; (2) failure to exclude from evidence the substance of a 9-1-1 call that included double hearsay; and (3) failure to let the jury find the enhancement factors required for sentencing a defendant as a Habitual Violent Felony Offender (“HVFO”) and a Prison Releasee Reoffender (“PRR”). We conclude the trial court committed no reversible error. Therefore, we affirm Hunter’s convictions and sentences, but, as explained below, remand for entry of a written order finding Hunter competent to stand trial.

Hunter first asserts that the trial court failed to hold the mandatory hearing under Florida Rule of Criminal Procedure 3.212(c) for a judicial competency determination after receiving a report from the state hospital indicating Hunter, previously adjudicated incompetent, had regained competency to proceed with trial. Rule 3.212(c) provides," in pertinent part:

(5) [After a court orders commitment due to incompetency] ... No later than 6 months from the date" of admission, the administrator of the facility shall file with the court a report that shall address [the defendant’s competency]. If, at any time during the 6-month period ... the administrator of the facility determines that the defendant no longer meets the criteria for commitment or has become competent to proceed, the [1014]*1014administrator shall notify the court by such a report, with copies to all parties.
(6) The court shall hold a hearing within 30 days of the receipt of any such report from the administrator of the facility on the issues raised thereby. If, following the hearing, the court determines that the defendant continues to be incompetent to proceed and that the defendant meets the criteria for continued commitment or treatment, the court shall order continued commitment or treatment for a period not to exceed 1 year. When the defendant is retained by the facility, the same procedure shall be repeated prior to the expiration of each additional 1-year period of extended commitment.
(7) If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed.

(Emphasis added.) A trial court’s failure to follow this procedure and adjudicate a defendant competent before moving on to the next material stage of the criminal proceedings is reversible error. See Jackson v. State, 880 So.2d 1241, 1242 (Fla. 1st DCA 2004); Samson v. State, 853 So.2d 1116, 1117 (Fla. 4th DCA 2003). “An individual adjudicated incompetent is presumed to remain incompetent until adjudicated restored to competence.” Samson, 853 So.2d at 1116 (citing Alexander v. State, 380 So.2d 1188, 1189 (Fla. 5th DCA 1980)). And “a criminal prosecution may not move forward at any material stage of a criminal proceeding against a defendant who is incompetent to proceed.” Caraballo v. State, 39 So.3d 1234, 1252 (Fla.2010).

It is not entirely clear from the record before us that the trial court indeed failed to hold the required hearing or find Hunter competent to be tried. The competency hearing was specifically noticed for July 23, 2012, and it took place, but the court made no determination because defense counsel sought psychiatric reevaluation of Hunter — which the court permitted — primarily to address whether he was insane at the time of the charged offenses. At the time of the healing, the court had reports from two forensic mental health specialists deeming Hunter competent to stand trial. Subsequently, at an August 16, 2012, status conference, defense counsel stated affirmatively, “[Hunter is] competent to proceed for competency but he still could be insane at the time, today.” The court replied, “Okay,” and defense counsel requested a further continuance to do more research on whether a defendant can be insane yet competent to stand trial.

We dealt with a somewhat similar scenario in Martinez v. State, 851 So.2d 832 (Fla. 1st DCA 2003). There, the defendant, previously adjudicated incompetent, was deemed restored to competency by mental institution staff. Id. at 833. Apparently at the outset of a plea hearing, defense counsel represented to the trial court that two doctors had concluded the defendant was competent to proceed, to which the judge responded, “All right, sir,” and went on to accept the defendant’s guilty plea and sentence him. Id. at 834. We construed the judge’s response, under the circumstances, as an oral determination of competency, notwithstanding that a hearing on the matter had not occurred. Id.

Similarly, here, we construe the trial court’s affirmative response to defense counsel’s representation at the August 16, 2012, status conference as an oral determination of Hunter’s competency. Unlike the scenario in Martinez, the trial court in this case did schedule and convene a competency hearing, and, on the record, did consider the two reports from the forensic mental health specialists concluding that [1015]*1015Hunter’s competency was restored. Moreover, the progress docket in the record indicates several more continuances after the August 16, 2012, status conference, at which point it is clear defense counsel’s focus was on having Hunter declared insane. According to the docket, a hearing occurred on September 28, 2012. ■ Strangely, that hearing was not recorded; consequently, there is no transcript in the record. But subsequent docket entries and filings in the record show that the usual trial preparation activity ensued and, ultimately, the trial itself was held in December 2012. Thus, the record before us indicates the trial court did determine Hunter was competent to go to trial. “[W]e will not presume that the court acted contrary to the dictates of the law by declining to make such a finding once it was aware of the prior adjudication of incompetency.” Martinez, 851 So.2d at 835.

Nevertheless, the record decidedly lacks a written order from the trial court adjudicating Hunter competent for trial, as required by rule 3.212(c)(7). As we did in Martinez, we simply remand to the trial court to enter the needed written adjudication nunc pro tunc. See id., at 834; see also Powell v. State, 28 So.3d 958, 958 (Fla. 1st DCA 2010); Bailey v. State, 931 So.2d 224, 225 (Fla. 1st DCA 2006); White v. State, 548 So.2d 765, 768 (Fla. 1st DCA 1989); Hampton v. State, 988 So.2d 103, 106 (Fla. 2d DCA 2008).

Hunter next argues that the trial court abused its discretion in admitting the recording of a 9-1-1 call which, although redacted in part before being played for the jury, was tainted by double hearsay. State’s witness Alex Taylor testified he made the call immediately upon seeing two men chasing a third knife-wielding man, yelling they had just been robbed, and telling Taylor to call 9-1-1. On the stand, Taylor described who and what he saw the night in question, and stated that he had been accompanied at the time by a Mr. Thompson.

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Cite This Page — Counsel Stack

Bluebook (online)
174 So. 3d 1011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tush-ee-lewis-hunter-v-state-of-florida-fladistctapp-2015.