Moreno v. State ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed November 8, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2883
Lower Tribunal No. 12-15201
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Luis Fundora Moreno,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian,
Judge.
Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney
General, for appellee.
Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
LUCK, J.
Defendant Luis Fundora Moreno appeals the trial court’s finding that he was
competent to be sentenced for violating his community control. After a brief
competency hearing where the parties stipulated that the two doctors appointed to
evaluate Moreno would testify consistently with their written reports (both doctors
found Moreno competent), the trial court accepted the stipulation and made its
competency finding. Moreno contends the trial court erred by not making an
independent determination of Moreno’s competency, and abused its discretion by
failing to appoint a neuropsychologist. After review of the record and briefs, and
with the benefit of oral argument, we affirm the competency finding and sentence
although we remand for the limited purpose of having the trial court enter a written
competency order memorializing its oral ruling.
Factual Background and Procedural History
The First Sentencing Hearing. In February 2014, Moreno was charged with
violating his community control by failing to complete a mental health evaluation;
failing to register for a domestic violence class; and failing to submit to a random
drug test. A few months later, in May, at the community control violation hearing,
Moreno asked the trial court to discharge his public defender so he could represent
himself. The trial court conducted a Faretta hearing,1 and after taking testimony
from Moreno and finding that he knowingly, voluntarily, and intelligently waived
his right to counsel, discharged the public defender, and continued with the hearing
with Moreno as his own counsel. At the end of the hearing, the trial court found
1 Faretta v. California, 422 U.S. 806 (1975).
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that Moreno willfully and substantially violated his community control. The trial
court then turned to sentencing. After hearing from the state, Moreno’s probation
officer, and Moreno, the trial court sentenced Moreno to twenty-one years in
prison, followed by two years of community control and thirteen years of
probation.
The First Appeal. Moreno appealed, and we affirmed in part and reversed in
part. We affirmed the revocation of Moreno’s community control, but reversed the
sentence because the trial court did not offer Moreno the assistance of counsel
before the sentencing portion of the hearing as required by Florida Rule of
Criminal Procedure 3.111(d)(5). Moreno v. State, 167 So. 3d 522, 523 (Fla. 3d
DCA 2015) (confession of error). (Florida Rule of Criminal Procedure 3.111(d)(5)
provides that if a defendant, as here, waives his right to counsel, “the offer of
assistance of counsel shall be renewed by the court at each subsequent stage of the
proceedings at which the defendant appears without counsel.” That includes a
sentencing hearing.) We remanded “for the limited purpose of holding a new
sentencing hearing with an offer of counsel.” Id.
The Competency Hearing. On remand, with the public defender now
representing Moreno, Moreno’s counsel told the trial court there were reasonable
grounds to believe Moreno was not competent to proceed with the sentencing
hearing, and asked that doctors be appointed to evaluate his competency.2 The
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trial court granted the motion, appointed two doctors to evaluate Moreno, and reset
the case so the doctors had time to complete their evaluations. When the trial court
called back the case three weeks later, the doctors had evaluated Moreno and
submitted single-spaced five and nine page reports finding Moreno competent to
proceed.
The state said it would stipulate that if the doctors were called to testify at
the hearing they would testify consistently with their reports. Moreno’s counsel
said that she assumed that’s what Moreno would want her to do, but she needed
time to talk with him to confirm. The trial court passed the case so counsel could
talk with Moreno. When the trial court recalled the case, counsel said that Moreno
would make the same stipulation. The trial court accepted the stipulation, and
found Moreno competent to proceed.
The Second Sentencing Hearing. At the sentencing hearing six weeks later,
the trial court heard from the probation officer, Moreno’s son and wife, a
mitigation specialist at the public defender’s office, and Moreno. The trial court
said it considered the facts of the underlying convictions that caused Moreno to be
on community control, his community control violations, and the mitigation
evidence presented at the hearing, and sentenced Moreno to twenty-one years
imprisonment, followed by fifteen years of probation.
2 The trial judge on remand was not the same one who presided at the first
sentencing hearing.
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Standard of Review
“A trial court’s decision regarding competency will stand absent a showing
of abuse of discretion.” McCray v. State, 71 So. 3d 848, 862 (Fla. 2011)
(quotation omitted). That decision “does not constitute an abuse of discretion
unless no reasonable person would take the view adopted by the trial court.” Id.
(quotation omitted).
Discussion
Moreno contends the trial court: (1) erred by relying only on the expert
reports in finding him competent and not making an independent competency
determination, and (2) abused its discretion by failing to appoint a
neuropsychologist to evaluate him. The state responds that the record shows the
trial court made an independent determination of Moreno’s competency before
sentencing him, and Moreno’s counsel did not request that Moreno be evaluated by
a neuropsychiatrist. We address each of these issues below.
1. Independent Competency Determination
A defendant is presumed sane when he enters the courtroom. Flowers v.
State, 353 So. 2d 1259, 1260 (Fla. 3d DCA 1978). But when there are reasonable
grounds to believe the defendant is not competent, the trial court must determine
whether the defendant “has sufficient present ability to consult with counsel with a
reasonable degree of rational understanding – and whether he has a rational as well
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as a factual understanding of the pending . . . proceedings.” Gore v. State, 24 So.
3d 1, 9 (Fla. 2009) (quoting Alston v. State, 894 So. 2d 46, 54 (Fla. 2004)); see also
Fla. R. Crim. P. 3.211(a)(1) (setting forth the factors an expert must consider in
determining competency). This determination must be “an independent legal” one
“after considering the expert testimony or reports and other relevant factors.”
Shakes v. State, 185 So. 3d 679, 681 (Fla. 2d DCA 2016) (citing Dougherty v.
State, 149 So. 3d 672, 678 (Fla. 2014)). The experts’ written reports “are advisory
to the trial court, which itself retains the responsibility of the decision.” Dougherty,
149 So. 3d at 678 (quotations omitted). Moreno argues the trial court did not make
the required “independent competency determination” before the sentencing
hearing, and it erred in relying solely on the expert reports in finding Moreno
competent to proceed.
Our review of the record shows otherwise. On September 25, 2015, the trial
court had an in-court conversation with Moreno about his last name. The trial
court spoke to Moreno again on October 14, 2015, when he had him sworn in, and
on the following day, when questioning Moreno about whether he wanted to
discharge the public defender. At the sentencing hearing, the trial court addressed
Moreno’s competency and said that the court had spoken with Moreno and found
him “to be intelligent, coherent, and alert.” The trial court commented that
Moreno seemed “to understand everything” and it didn’t have reasonable grounds
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to be believe Moreno was not competent to proceed. The trial court observed and
heard Moreno testify at the sentencing hearing, and found him to be coherent, alert,
and logical. The trial court reiterated after hearing Moreno speak that it was
confident Moreno understood the proceedings.
Taken together, the trial court made an independent determination of
Moreno’s competency. The trial court’s finding was based on its observations of,
and conversations with, Moreno at four hearings. While the trial court relied on
the experts’ reports in finding Moreno competent to proceed, as it was entitled to
do, id. at 677-78 (“[W]here the parties and the judge agree, the trial Court may
decide the issue of competency on the basis of the written report alone.” (quotation
omitted)), the court also explained that it found Moreno competent based on its
experiences with him during the previous hearings.
The trial court’s competency finding was leagues apart from those that have
been reversed by the Florida courts. In Dougherty, for example, the Florida
Supreme Court held the competency finding was insufficient because the trial
court relied solely on the defendant’s stipulation on the ultimate issue that he was
competent. See Dougherty, 149 So. 3d at 678 (“[A] defendant cannot stipulate that
he is competent, particularly where he has been previously adjudicated
incompetent during the same criminal proceedings.”). In Shakes, the second
district found error because “[t]he trial court did not consider the testimony of any
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experts, and the trial court gave no indication that it had reviewed the report
submitted by the psychologist, which report was not specifically mentioned on the
record at any of the hearings in this case.” Shakes, 185 So. 3d at 681-82. The
second district also found error in Bylock v. State, 196 So. 3d 513 (Fla. 2d DCA
2016) because “there [was] no indication in the record that the parties agreed that
the trial court could rely on the reports deeming Bylock competent to proceed.” Id.
at 515. And in Harris v. State, 864 So. 2d 1252 (Fla. 5th DCA 2004), the trial
court failed to read or consider timely the experts’ reports, did not talk to the
defendant, did not have a competency hearing, and did not make a competency
finding. Id. at 1255.
Here, unlike those cases, the trial court held a competency hearing; both
parties stipulated on the record that the doctors would testify consistently with their
reports; the trial court spoke to Moreno and observed his demeanor; the trial court
considered the doctors’ reports; and the trial court made a finding that Moreno was
competent to proceed. While brief, the competency hearing complied with the
procedural rules, and the trial court’s finding was supported by competent
substantial evidence. There was no error.
2. Neuropsychology Expert
Moreno also contends the trial court abused its discretion when it failed to
appoint a neuropsychologist to conduct a competency evaluation. We have
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combed the record and cannot find where Moreno made such a request. (Moreno’s
brief concedes that “defense counsel never formally requested the appointment of a
neuropsychologist.”) After Moreno’s counsel suggested Moreno was incompetent
to proceed and requested that two experts be appointed to evaluate him, the clerk
asked about appointing Dr. Fonte and Dr. Romero. The trial court asked: “Is that
fine with both of you?” Moreno’s counsel said, “That’s fine with me.” (The state
also agreed.) At the competency hearing, Moreno’s counsel stipulated that the
doctors would testify consistently with their reports. How could the trial court
abuse its discretion to appoint a neuropsychologist when there was no request for it
to exercise its discretion and there was a stipulation the trial court could rely on the
testimony of the two appointed doctors?
Besides, when the issue of competency was raised again on the day of the
sentencing hearing, the trial court found no reasonable ground to believe that
Moreno was not competent, and that finding was supported by competent
substantial evidence. The trial court’s finding was based on its conversations with
Moreno on September 25, October 14, and October 15, 2015, and the doctors’
reports, which concluded that despite his head injury Moreno understood the
proceedings and could consult with counsel. The trial court reiterated after seeing
and hearing Moreno actively participate and testify at the sentencing hearing that
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Moreno understood the proceedings. The trial court did not abuse its discretion by
not appointing a third doctor to evaluate Moreno.
Conclusion
For these reasons, we affirm the trial court’s competency finding and its
sentence for Moreno’s violations of community control. Because the parties agree
the trial court did not memorialize its competency finding with a written order as
required by the rules of criminal procedure, Fla. R. Crim. P. 3.212(b) (“If the court
finds the defendant competent to proceed, the court shall enter its order so finding
and shall proceed.”); Gordon v. State, 219 So. 3d 189, 197 (Fla. 3d DCA 2017)
(“[T]he trial court made an oral finding that defendant was competent to proceed,
but failed to render a written order to that effect. This cause must be remanded to
the trial court to enter a written order consistent with its oral pronouncement.”), we
remand to the trial court for the sole purpose of entering a written order reflecting
its oral pronouncement regarding Moreno’s competency. Because this is a
ministerial act, Moreno need not be present.
Affirmed and remanded for entry of a written order.
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