WALKER v. STATE (2019)

District Court of Appeal of Florida, First District.

Edward D. WALKER, Appellant, v. STATE of Florida, Appellee.

No. 1D18-372

Decided: October 03, 2019

Candice K. Brower, General Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville, and Michael J. Titus, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.

Edward Walker appeals his judgment and sentence after entering a nolo contendere plea to a charge of grand theft of a motor vehicle. Walker claims that the trial court committed fundamental error by failing to conduct a competency hearing after his attorney requested a competency evaluation and the trial court appointed an expert, as well as failing to make an individualized finding as to his competency, before the trial court accepted Walker's plea. We agree and reverse. Sheheane v. State, 228 So. 3d 1178, 1180 (Fla. 1st DCA 2017).

On remand, the trial court must address competency. Id. at 1181. If the evidence that existed previously supports a finding that Walker was competent at the time of the plea, the trial court may decide competency, nunc pro tunc, with no change in the judgment. Id. However, if the trial court cannot make a retroactive competency determination or it finds that Walker is incompetent, the trial court must vacate Walker's plea and set the case for trial. Zern v. State, 191 So. 3d 962, 965 (Fla. 1st DCA 2016).

Reversed and Remanded with instructions.

Per Curiam.

Wolf, Kelsey, and Winokur, JJ., concur.

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