Frye v. State ( 2017 )


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  •       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
    June 9, 2017
    JOSEPH LEE FRYE,                 )
    )
    Appellant,            )
    )
    v.                               )              Case No. 2D12-6418
    )
    STATE OF FLORIDA,                )
    )
    Appellee.             )
    ________________________________ )
    BY ORDER OF THE COURT:
    The State's motion for clarification is granted in part. The prior opinion,
    dated September 16, 2016, contained a typographical error indicating that Mr. Frye
    went to trial in December 2010 without a competency determination. Instead, Frye went
    to trial without a competency determination in December 2012. The prior opinion is
    withdrawn, and the attached opinion is substituted only to correct this error. No further
    motions will be entertained.
    I HEREBY CERTIFY THE FOREGOING IS A
    TRUE COPY OF THE ORIGINAL COURT ORDER.
    MARY ELIZABETH KUENZEL, CLERK
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    JOSEPH LEE FRYE,                 )
    )
    Appellant,            )
    )
    v.                               )                Case No. 2D12-6418
    )
    STATE OF FLORIDA,                )
    )
    Appellee.             )
    ________________________________ )
    Opinion filed June 9, 2017.
    Appeal from the Circuit Court for
    Hillsborough County; Chet A. Tharpe,
    Judge.
    Howard L. Dimmig, II, Public Defender,
    and David B. Falstad, Special Assistant
    Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General,
    Tallahassee, and Wendy Buffington,
    Assistant Attorney General, Tampa,
    for Appellee.
    NORTHCUTT, Judge.
    The trial court initially adjudicated Joseph Frye incompetent to stand trial
    and committed him for treatment. Although the specialists appointed to determine
    Frye's competency later opined that it had been restored, he was then tried without the
    court first adjudicating him to be competent. Frye appealed the resulting convictions,
    and we relinquished jurisdiction to give the trial court an opportunity to attempt an
    assessment of Frye's competence at the time of trial. On July 29, 2015, a nunc pro tunc
    -2-
    competency hearing was held and the trial court ruled that Frye had been competent
    during his trial in December 2012. We find that the trial court's order was not supported
    by competent substantial evidence, and we reverse Frye’s convictions.
    "Once found incompetent, a presumption clings to the criminal defendant
    that the state of incompetence persists until a court, after proper notice and a hearing,
    finds otherwise." Roman v. State, 
    163 So. 3d 749
    , 750-51 (Fla. 2d DCA 2015) (quoting
    Molina v. State, 
    946 So. 2d 1103
    , 1105 (Fla. 5th DCA 2006)). Once the trial court
    receives notice that a defendant has regained competency, "the court shall hold a
    hearing to determine if a defendant is competent to proceed." 
    Id. at 751.
    Generally, a
    trial court's failure to determine that a defendant regained competency prior to trial
    requires that his conviction be reversed. Dougherty v. State, 
    149 So. 3d 672
    , 678-79
    (Fla. 2014).
    In some situations, however, competency may be determined
    retrospectively, although such after-the-fact determinations are "inherently difficult, even
    under the most favorable circumstances." 
    Id. at 679;
    see also Drope v. Missouri, 
    420 U.S. 162
    , 183 (1975). "[A] nunc pro tunc competency evaluation could be done where
    '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.' " 
    Dougherty, 149 So. 3d at 679
    (emphasis added) (quoting
    Mason v. State, 
    489 So. 2d 734
    , 737 (Fla. 1986)). "The chances of conducting a
    meaningful retrospective competency hearing decrease when experts must rely on a
    cold record." 
    Id. (quoting Jones
    v. State, 
    740 So. 2d 520
    , 523 (Fla. 1999)).
    -3-
    During the nunc pro tunc competency hearing in this case, the trial court
    considered the testimony and reports of two mental health experts. But both experts
    were specifically appointed to offer retrospective opinions of Frye's competency at the
    time of trial. Both opined that Frye had been competent throughout. The experts
    reported that they attempted brief interviews with Frye in May 2015 and also reviewed
    an assortment of documentary evidence—psychiatric evaluations from 2010,
    miscellaneous trial transcripts, a recorded police interview from 2009, jail phone calls,
    and jail pharmacy records. This evidence, by itself, cannot satisfy Dougherty's criteria
    where neither expert had observed or examined Frye at or near the time of trial. The
    record establishes that one expert had no contact with Frye during the two and a half
    years preceding trial. The second expert acknowledged meeting Frye for the first time
    in May 2015. A nunc pro tunc competency witness cannot, as the experts did in this
    case, rely solely on a cold record.
    We reject the trial court's order retroactively finding Frye competent
    because this finding was not supported by competent substantial evidence. We also
    reverse Frye's convictions and remand for new trial. However, we caution that as of this
    time, there remains a presumption that Frye is incompetent to stand trial. Before trying
    Frye anew on remand, the trial court must first conduct a hearing to determine whether
    Frye is competent to proceed.
    Reversed and remanded for further proceedings.
    CRENSHAW and BLACK, JJ., Concur.
    -4-
    

Document Info

Docket Number: Case 2D12-6418

Judges: Northcutt, Crenshaw, Black

Filed Date: 6/9/2017

Precedential Status: Precedential

Modified Date: 3/2/2024