Date: 10-05-2020

Case Style:

Case Number: 19-0722

Judge: F. Rand Wallis

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

Plaintiff's Attorney: Ashley Moody, Attorney General,
Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach

Defendant's Attorney:

Description: DeLand, FL - Criminal Defense Attorney, violation of injunction against repeat violence and resisting arrest with violence

Appellant, George Fredrick Hicks, appeals the judgment and sentence entered
after a jury found him guilty of violation of injunction against repeat violence and resisting
arrest with violence. Appellant argues that because he had been adjudicated
incompetent, it was error for the trial court to proceed to trial without issuing a written
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order containing findings of his competency. The State concedes that the trial court did
not issue a written order on Appellant's competency.
"Generally, a proper hearing to determine whether competency has been restored
after a period of incompetence requires 'the calling of court-appointed expert witnesses
designated under Florida Rule of Criminal Procedure 3.211, a determination of
competence to proceed, and the entry of an order finding competence.'" Yancy v. State,
280 So. 3d 1112, 1113 (Fla. 5th DCA 2019) (quoting Dougherty v. State, 149 So. 3d 672,
677 (Fla. 2014)). If the parties and judge agree, "the trial court may decide the issue of
competency on the basis of written reports alone." Id. (quoting Dougherty, 149 So. 3d at
678). If the trial court finds the defendant competent to proceed, "it must enter a written
order adjudicating the defendant competent." Rumph v. State, 217 So. 3d 1092, 1095
(Fla. 5th DCA 2017).
Prior to trial, Appellant underwent court-ordered mental evaluations and was
subsequently adjudicated incompetent to proceed. After his commitment to a mental
health facility, a psychologist attempted to evaluate Appellant on two occasions, but
Appellant was uncooperative. Thus, the psychologist could not opine as to Appellant's
competency. Thereafter, the trial court held a competency hearing and orally ruled that
Appellant was competent to stand trial. The transcripts from that hearing show that no
expert witnesses were called to testify, and it does not appear that the trial court relied on
expert reports to make an independent determination of Appellant's competency. This
constitutes reversible error. See Yancy, 280 So. 3d at 1113 ("Because we are unable to
ascertain from the record on appeal whether the trial court read the expert's evaluation
and made an independent determination of Yancy's competency, we are required to
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remand for a nunc pro tunc determination of such."). Moreover, the record does not
contain a written order with the trial court's findings of competence. This too amounts to
reversible error. See Rumph, 217 So. 3d at 1095 ("Because there is no written order in
the record adjudicating Rumph competent, remand is necessary.").

Outcome: Therefore, we reverse and remand for the trial court to retroactively determine if
Appellant was competent to proceed to trial and to enter a written order nunc pro tunc on Appellant's competency. If the trial court finds that Appellant's pre-trial competency cannot be retroactively determined, or if the trial court finds that Appellant was , 247 So.3d 601, 604 (Fla. 5th DCA 2018).

Plaintiff's Experts:

Defendant's Experts:

Comments: