Ronald Pak Zern v. State of Florida , 191 So. 3d 962 ( 2016 )


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  •                                       IN THE DISTRICT COURT OF APPEAL
    FIRST DISTRICT, STATE OF FLORIDA
    RONALD PAK ZERN,                      NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    Appellant,                      DISPOSITION THEREOF IF FILED
    v.                                    CASE NO. 1D14-5817
    STATE OF FLORIDA,
    Appellee.
    _____________________________/
    Opinion filed May 12, 2016.
    An appeal from the Circuit Court for Okaloosa County.
    John T. Brown, Judge.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public
    Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney
    General, Tallahassee, for Appellee.
    RAY, J.
    Ronald Pak Zern, Appellant, appeals from his convictions for aggravated
    assault, aggravated battery on a person sixty-five years of age or older, improper
    exhibition of a firearm, and tampering with evidence. He argues that the trial court
    erred in failing to make an independent finding of competence or incompetence
    after ordering psychological evaluations and scheduling a competency hearing. We
    agree and reverse for this reason. We find no distinct reversible error with regard to
    Appellant’s second issue concerning the trial court’s failure to order an additional
    psychological evaluation upon the request of Appellant’s counsel at a subsequent
    court appearance.
    While the charges were pending, a psychologist evaluated Appellant at the
    request of his attorney. This psychologist issued a written report recommending
    that the court consider Appellant incompetent to proceed. On the State’s motion,
    the court appointed a second psychologist to evaluate Appellant. When the matter
    was discussed at a conference, Appellant personally advised the court that he was
    competent and did not want a second evaluation, but his attorney did not join in
    this representation to the court. The court ordered the second evaluation, and the
    second psychologist opined that Appellant was competent to proceed.
    Appellant appeared in court for a competency hearing after both expert
    reports were filed. At this hearing, Appellant was unruly and continued to insist on
    his competence, while arguing that his attorney was lying, setting him up, and
    trying to incriminate him. The State advised the court that it could hold a
    competency hearing without further ado but that the more typical approach when
    two psychologists have reached conflicting conclusions is to appoint a third
    psychologist to “kind of break the tie.” The court appointed a third evaluator.
    2
    Appellant’s counsel advised that she would “absolutely” ask for a competency
    hearing after the third evaluation, and the court explained to Appellant that it
    would determine his competence at a hearing where the experts would be available
    for cross-examination.
    The third psychologist opined that Appellant was competent to proceed. The
    parties appeared in court for the competency hearing the day after the State filed
    the third psychologist’s report. At that time, the court indicated that it had not yet
    seen the third report. The court was advised at the hearing that the third evaluator
    found Appellant competent. Appellant was represented by his fourth successive
    assistant public defender in the case, a different attorney from the one who had
    appeared at the prior hearing on Appellant’s competency. Appellant’s new counsel
    notified the court that he had spoken with Appellant and believed him to be
    competent, and he asked the court “to declare [Appellant] competent based on the
    reports.” The State responded, “In light of [defense counsel’s] stipulation, Judge,
    we maintained all along that he’s competent, and the defendant himself has assured
    the Court that he’s competent throughout this cycle. So we would ask that we be
    able to move forward with the case at this time.” The court declared Appellant
    competent, and the brief hearing concluded without any comment from Appellant
    or testimony from the experts, even though they were present and prepared for a
    hearing.
    3
    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. Dougherty v. State, 
    149 So. 3d 672
    , 676 (Fla. 2014)
    (quoting Drope v. Missouri, 
    420 U.S. 162
    , 172 (1975)). Florida Rules of Criminal
    Procedure 3.210 through 3.212 provide the competency procedures required in this
    state.
    According to Rule 3.210(b) and case law, 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. Brooks v. State, 
    180 So. 3d 1094
    , 1096
    (Fla. 1st DCA 2015). At the competency hearing, the court must make its own
    independent finding of competence or incompetence. Dougherty, 149 So. 3d at
    677. If the parties and the court agree, the court may decide the issue based on the
    experts’ reports without receiving any testimony. Id. at 677-78 (citing Fowler v.
    State, 
    255 So. 2d 513
    , 515 (Fla. 1971)). However, the court must regard the reports
    as advisory only. 
    Id.
     (citing McCray v. State, 
    71 So. 3d 848
    , 862 (Fla. 2011)).
    Further, the court is not permitted to merely accept a stipulation of competence. Id.
    at 678. In fact, acceptance of a stipulation is improper even when all the experts
    have opined that the defendant is competent, as other evidence may indicate
    incompetence. Id.
    4
    The record in this case establishes that the trial court relied on the stipulation
    of defense counsel and the preponderance of the experts’ ultimate opinions to
    make its competency determination, without having read all the evaluations. It
    does not show an independent finding. Because an independent competency
    finding is a due-process right that cannot be waived once a reason for a
    competency hearing has surfaced, the trial court fundamentally erred in failing to
    make such a finding.1
    Generally, the remedy for a trial court’s failure to conduct a proper
    competency hearing is a new trial, as long as the defendant is determined on
    remand to be competent to stand trial. Dougherty, 149 So. 3d at 678-79. However,
    precedent provides that “a retroactive determination of competency is possible”
    when “there are a sufficient 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.” Id. (citing Fowler, 55 So. 2d at 515,
    and Mason v. State, 
    489 So. 2d 734
    , 737 (Fla. 1986)). Accordingly, we reverse and
    remand for a retroactive determination of competency. If the court finds that
    Appellant was competent at the time of trial, it must enter a nunc pro tunc written
    order memorializing this finding with no change in the judgment. See Dougherty,
    149 So. 3d at 678 (noting the requirement of a written order); Moorer v. State,
    1
    Although our precedent in Thomas v. State, 
    894 So. 2d 1000
     (Fla. 1st DCA
    2005), would dictate a different holding, it has been superseded by Dougherty.
    5
    
    2016 WL 852307
    , No. 1D14-5040 (Fla. 1st DCA March 4, 2016). If the trial court
    finds that Appellant was incompetent or that a retrospective determination is not
    possible in this case, it must hold a new trial, as long as Appellant is and remains
    competent on remand.
    REVERSED and REMANDED with instructions.
    WETHERELL and KELSEY, JJ., CONCUR.
    6
    

Document Info

Docket Number: 14-5817

Citation Numbers: 191 So. 3d 962

Filed Date: 5/11/2016

Precedential Status: Precedential

Modified Date: 1/12/2023