Third District Court of Appeal
                                State of Florida

                           Opinion filed March 16, 2016.
                               ________________

                                 No. 3D15-1349
                           Lower Tribunal No. 13-10564
                               ________________

                                 Ronald Devers,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Rodney Smith, Judge.

      Ronald Devers, in proper person.

     Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellee.


Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.

                              On Confession of Error

      SUAREZ, C.J.

      Upon the state’s laudable confession of error, this case is reversed and

remanded in order for the lower court to either hold an evidentiary hearing or to

attach portions of the record that conclusively refute Appellant’s claims.
      As conceded by the state, Appellant’s Florida Rule of Criminal Procedure

3.850 motion challenged the voluntariness of his plea, a claim properly cognizable

in a 3.850 motion. Mikenas v. State, 

(Fla. 1985). As a result, the

trial court was required to attach evidence conclusively refuting such a claim. See,

e.g., Barnes v. State, 

, 915 (Fla. 2013); Barnes v. State, 

(Fla. 1st DCA 2001) (reversing summary denial of 3.850 motion where

defendant alleged plea was involuntary due to mental illness and court failed to

attach documents that conclusively refuted his claims); Young v. State, 

, 1162 (Fla. 5th DCA 2001) (“absent a transcript of the plea hearing, Young's

claim that his plea was unknowing has not been conclusively refuted by the record.

Thus, as to this claim, we reverse and remand for further proceedings.”).

      Moreover, because Appellant’s claims must be taken as true, Appellant was

entitled to the presumption of incompetency. Alexander v. State, 

,

1190 (Fla. 5th DCA 1980) (once adjudicated incompetent, a hearing on whether

competency has been restored cannot be waived); King v. State, 

,

464 (Fla. 1st DCA 1980) (“In Florida, if a person is adjudicated to be mentally

incompetent, it is presumed he continues to be so until it is shown his sanity has

returned”). Moreover, this presumption shifts the burden of proving competency

to the state. Wells v. State, 

(Fla. 1957). In its initial response

below, the state failed to address the question of incompetency. Upon remand, the



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trial court should require the state to adequately respond to Appellant’s claims of

incompetency.

      Accordingly, we reverse and remand for the trial court to consider

Appellant’s claims of incompetence under the presumption of incompetence and to

provide evidentiary support for its conclusions on those claims.

      Reversed and remanded.




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