IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

LESLIE RICHARD HENDRIX,                NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-2924

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 6, 2017.

An appeal from the Circuit Court for Escambia County.
Darlene Dickey, Judge.

Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.




WINOKUR, J.

      Leslie Richard Hendrix appeals the judgment and sentence imposed after

pleading guilty to felony battery. He argues that the trial court failed to follow the

proper competency procedures and failed to enter a written order finding him
competent to proceed before permitting him to enter a guilty plea. We remand for

the trial court to enter a written order of competency nunc pro nunc, but otherwise

affirm.

      Three experts, Drs. Doenlen, Benson, and Gilgun, evaluated Hendrix’s

competency to proceed. Dr. Benson and Dr. Gilgun found Hendrix competent to

proceed. On May 4, 2016, the trial court accepted Hendrix’s open plea to felony

battery. At the outset of Hendrix’s sentencing hearing on June 16, 2016, the trial

court stated the following:

                     Before we proceed, I realized when I was preparing
             for sentencing that I did not specifically state on the record
             at the time I accepted [Hendrix’s] plea that there have been
             evaluations completed by both Dr. Gilgun and Dr. Benson.
             The Court has read them and both doctors find [Hendrix]
             competent.
                     I do find based upon the information in the reports
             that their opinions are based on competent, substantial
             evidence. So the Court does find that [Appellant] is
             competent and was competent at the time that I accepted
             his plea.

The trial court asked defense counsel, “Anything else on that issue?” and defense

counsel replied, “No, judge.” The trial court did not enter a written order

adjudicating Hendrix competent. Hendrix was then sentenced to five years

imprisonment.

      Hendrix’s challenge to the adequacy of the competency procedures is raised

for the first time on appeal, and is subject to review for fundamental error. See

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Dougherty v. State, 

, 676 (Fla. 2014). Error is fundamental if it “goes

to the foundation of a case” and amounts to a denial of due process. D’Oleo-Valdez

v. State, 

, 1248 (Fla. 1988).

      Under Florida Rule of Criminal Procedure 3.210, “[o]nce a defendant is

declared incompetent, no material stage of a criminal prosecution, including entry

of a plea and sentencing, may proceed.” Lewis v. State, 

, 209 (Fla. 1st

DCA 2016). Once the court has reasonable grounds to question the defendant’s

competency, the court has no choice but to conduct a hearing. Brooks v. State, 

, 1096 (Fla. 1st DCA 2015) (quoting Cotton v. State, 

,

668 (Fla. 1st DCA 2015)). The trial court is required to make an independent

determination that the defendant is competent to proceed, and cannot rely on a

stipulation of the defendant or his counsel that defendant is competent to proceed.

. The trial court’s order must also be reduced to writing.

Fla. R. Crim. P. 3.212(b); Mullens v. State, 

, 37–38 (Fla. 2016).

      “‘[W]here the parties and the judge agree, the trial Court may decide the issue

of competency on the basis of the written reports alone.’” 

–78 (quoting Fowler v. State, 

, 515 (Fla. 1971)). However,

“reports of experts are ‘merely advisory to the [trial court], which itself retains the

responsibility of the decision.’” Hunter v. State, 

, 247 (Fla. 1995)

(quoting Muhammad v. State, 

, 973 (Fla. 1986)). “[W]hen the experts’

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reports or testimony conflict regarding competency to proceed, it is the trial court’s

responsibility to consider all the relevant evidence and resolve such factual

disputes.” Alston v. State, 

, 54 (Fla. 2004).

      The trial court cannot accept a stipulation of competency. Dougherty, 

at 678. “The parties may stipulate to deciding competency based on the written

expert reports rather than live expert testimony, but the defendant and the other

parties may not stipulate to competency itself, particularly when the defendant was

previously adjudicated incompetent, as the trial court must make an independent

determination on the issue.” Rumph v. State, 

, 1095 (Fla. 5th DCA

2017). However, a new trial “is required only if the trial court is unable to conduct a

nunc pro tunc evaluation of the defendant’s competency at the time of the original

trial or hearing.” Reynolds v. State, 

, 298 (Fla. 1st DCA 2015).

      Hendrix argues that the trial court could not rely on the reports of Dr. Gilgun

and Dr. Benson because they were never admitted into evidence. His failure to object

to the court’s consideration of the reports, Hendrix argues, does not bar relief

because Hendrix’s counsel could not stipulate to his competency. We disagree.

Hendrix is correct that he has a right to a competency determination that cannot be

defeated by his failure to object to a lack of a hearing. See e.g. Deferrell v. State, 

, 1061 (Fla. 4th DCA 2016). But this right does not relieve him of the

responsibility to make evidentiary objections relating to the competency

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determination. As long as the trial court held a competency hearing, and made an

independent determination of competency, the lack of a proper foundation for the

consideration of the reports is not fundamental error. The trial court gave Hendrix a

specific opportunity to challenge its nunc pro tunc competency determination, and

Hendrix declined.

      We find that the trial court properly determined that Hendrix was competent.

See e.g. Merriell v. State, 

, 1288 (Fla. 1st DCA 2015) (holding that

competency hearing was sufficient where the issue was raised at a status hearing, the

court noted that it had reviewed the evaluation, and the court specifically stated that

the defendant was competent to proceed). We affirm Hendrix’s judgment and

sentence, but remand for the trial court to enter an order nunc pro tunc finding him

competent to enter a guilty plea.

      Affirmed and remanded with instructions.

ROBERTS and M.K. THOMAS, JJ., CONCUR.




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