IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


ANTWAN T. MANN,

              Appellant,

v.                                                        Case No. 5D18-245

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed August 31, 2018

Appeal from the Circuit Court
for Volusia County,
Kathryn D. Weston, Judge.

James S. Purdy, Public Defender, and
Edward J. Weiss, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee,   and    Rebecca  Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee.


PER CURIAM.

       Antwan T. Mann appeals his judgment and sentence for felony battery. Mann

contends that the trial court erred in continuing the case to trial without holding a hearing

or entering an order to determine his competency after his public defender filed a
suggestion of mental incompetency to stand trial. The State concedes error. We agree

and remand for the trial court to conduct a retroactive competency evaluation.

       It is reversible error for a trial court to continue with criminal proceedings without

making a competency determination where it has reasonable grounds to believe that a

defendant is incompetent to proceed. See Carrion v. State, 

, 565 (Fla. 5th

DCA 2003) (“[T]he trial judge had been presented with reasonable grounds to question

the mental competency of Mr. Carrion at a pretrial stage. Once having come to this

conclusion, he was required by the rule to follow the prescribed procedure and to hold a

competency hearing.”).      The Fourth District Court has explained the appropriate

procedure after a case has been remanded for a trial court to make a retroactive

determination of competency:

              Thus, on remand, if the court can make a nunc pro tunc finding
              as to appellant’s competency based upon the existence of
              evaluations performed contemporaneous with trial and
              without relying solely on a cold record, and can do so in a
              manner which abides by due process guarantees, then it
              should do so and enter a corresponding written order.

Baker v. State, 

, 641 (Fla. 4th DCA 2017); accord Holland v. State, 

, 637 (Fla. 2d DCA 2016) (“Accordingly, we remand the case to the trial court

for entry of a nunc pro tunc order finding Holland competent to stand trial.”). In making

this determination, “[t]he parties may agree to the use of the previous evaluators’ written

reports, which shall be filed with the court and placed in the record.” Sheheane v. State,

, 1181 (Fla. 1st DCA 2017). If the trial court determines that Mann was

competent at the time of trial, it must enter a nunc pro tunc written order without altering

his judgment. See Zern v. State, 

, 965 (Fla. 1st DCA 2016). “If the trial

court finds that [the defendant] was incompetent or that a retrospective determination is



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not possible in this case, it must hold a new trial, as long as [the defendant] is and remains

competent on remand.” 

remand this case for the trial court to make a retroactive competency

determination consistent with this opinion.


       REMANDED.

SAWAYA, WALLIS and LAMBERT, JJ., concur.




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