SCHULTZ v. STATE (2020)

District Court of Appeal of Florida, Fifth District.

William SCHULTZ, Petitioner, v. STATE of Florida, Respondent.

Case No. 5D20-1052

Decided: August 21, 2020

Loren D. Rhoton, Tampa, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Respondent.

In his petition for writ of habeas corpus, Petitioner raises a single ground for relief, arguing that appellate counsel was ineffective for failing to raise the trial court's failure to conduct a competency hearing and make a finding on competency. Although the trial court appointed an expert to evaluate Petitioner, it did not hold a competency hearing or enter an order adjudicating Petitioner competent. Therefore, we find appellate counsel ineffective for failing to address this issue in Petitioner's direct appeal. See Joseph v. State, 244 So. 3d 416, 416–17 (Fla. 5th DCA 2018). Accordingly, we grant the petition and remand this cause to the trial court to make a retroactive competency determination, if possible. See Silver v. State, 193 So. 3d 991, 993–94 (Fla. 4th DCA 2016). If a retroactive determination cannot be properly made, or if the court determines Petitioner was incompetent at the time of trial, a new trial should be set once Petitioner's competency is restored. See id. at 994.

PETITION GRANTED.

PER CURIAM.

EVANDER, C.J., LAMBERT and GROSSHANS, JJ., concur.

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