BALL v. STATE (2021)

Appellant, John Ball, was charged with carjacking with a firearm (count one), possession of firearm by felon (count two), possession of firearm/ammunition by felon (count three), and fleeing or attempting to elude (count four).

Competency Evaluation Ordered

On January 25, 2019, Appellant filed an amended motion to appoint one expert to evaluate his competency. The trial court granted the motion and appointed Dr. Harry Krop to examine Appellant. On February 27, 2019, a proceeding was held to address Appellant's competency, during which defense counsel advised that the evaluation was complete, and that defense counsel was willing to stipulate that he was competent to proceed. There was nothing in the record to indicate that the trial court independently evaluated Dr. Krop's report or Appellant's competence.

Appellant entered a no contest plea to count four and was sentenced to five years in prison. He proceeded to trial on counts one through three, and was found guilty on all three counts. He was sentenced to life in prison on count one as a prison releasee reoffender, fifteen years in prison on count two, and count three was dismissed.

Appellant argues, and the State concedes, that the trial court erred by failing to make an independent determination of Appellant's competency regarding counts one through three. We agree. See Bynum v. State, 247 So. 3d 601, 603 (Fla. 5th DCA 2018). As to counts one through three, we reverse and remand for the trial court to conduct a nunc pro tunc competency evaluation, if it can, to determine whether Appellant was competent to proceed at the time of his trial and to enter an appropriate order regarding his competence. If the trial court cannot conduct that evaluation or if it determines that Appellant was not competent, it shall enter an appropriate order regarding further proceedings, including a new trial on those three counts when his competence has been properly evaluated and confirmed. See id. at 604.

Count Four – Failure to Move to Withdraw Plea

Because Appellant entered an open no contest plea to count four and has not moved to withdraw his plea, we lack jurisdiction to deal with that count. Accordingly, we dismiss that portion of the appeal, meaning that Appellant's conviction and sentence on count four remain unaffected at this time. See Hammonds v. State, 291 So. 3d 1283, 1283 (Fla. 5th DCA 2020) (“Because Hammonds failed to file a motion to withdraw his plea based on the competency issue, we are without jurisdiction to consider that matter.”).

We are aware that the Fourth District no longer requires a defendant to move to withdraw a plea before appealing the trial court's failure to properly determine the defendant's competency in those cases where the “trial court [had] reasonable grounds to believe the defendant is incompetent.” See Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th DCA 2018), review granted, No. SC18-681, 2018 WL 3635017 (Fla. July 11, 2018).¹ We do not follow Dortch. See Campbell v. State, ––– So. 3d ––––, 2020 WL 1222841, 45 Fla. L. Weekly D580 (Fla. 5th DCA Mar. 13, 2020). As to count four, we lack jurisdiction and dismiss that portion of the appeal.

REVERSED AND REMANDED for further proceedings as to counts one, two, and three. APPEAL DISMISSED as to count four.

FOOTNOTES

1.   It would appear from the Florida Supreme Court's online docket that oral argument was held on March 7, 2019, but no decision has been issued as of the date of this opinion.

EDWARDS, J.

ORFINGER and HARRIS, JJ., concur.