PARKER v. STATE (2021)

Robin Parker appeals her convictions for bank fraud and multiple counts of uttering a forged instrument. She makes two arguments on appeal. First, she claims that the trial court erred by determining that she was competent to stand trial in reliance upon expert reports that were stale. Second, Appellant argues for reversal because the trial court failed to enter a written competency order. We affirm because neither issue was preserved nor amounts to fundamental error.

During the pendency of her charges, Ms. Parker was evaluated by mental health experts to determine whether she was competent to stand trial. The expert reports were submitted to the court, but no determination was immediately made. About two years later, before the case went to trial, a successor judge noticed that no formal ruling had been made on Appellant's competency. Counsel for the parties then stipulated that the court could consider the expert reports that were previously completed to determine Appellant's competency. After reviewing those reports, the court stated on the record that Appellant was competent to stand trial, but it did not render a written order recording its finding.

Appellant now contends that the court erred in finding her competent because the expert reports were stale when the trial court held the competency hearing. But Appellant failed to object and preserve this issue. In fact, Appellant affirmatively stipulated to the court's consideration of these expert reports. Claims that a trial court based a competency decision on stale evidence do not amount to fundamental error and must be preserved to be considered on appeal. Alcazar v. State, 276 So. 3d 962, 965 (Fla. 1st DCA 2019); see also Bittle v. State, 245 So. 3d 792, 794–95 (Fla. 4th DCA 2018).

Additionally, we find no fundamental error in the court's failure to enter a written order of competency. After the court holds a competency hearing, a written order is required by Florida Rule of Criminal Procedure 3.212(b). When the record does not contain a written order, this Court typically remands for entry of a nunc pro tunc order. See, e.g., Merriell v. State, 169 So. 3d 1287, 1289 (Fla. 1st DCA 2015). However, the Florida Supreme Court recently ruled that for arguments challenging a trial court's failure to enter a written order to succeed, they must be preserved or constitute fundamental error. Santiago-Gonzalez v. State, 301 So. 3d 157, 175 (Fla. 2020). Here, Appellant did not preserve the issue, nor does the lack of a written order constitute fundamental error given the court's explicit oral competency finding. See id. (“Given the trial court's oral competency finding in this case, which is fully supported by the record, Santiago-Gonzalez has not demonstrated fundamental error and is therefore not entitled to relief on this issue.”).

Accordingly, the judgment and sentence are AFFIRMED.

Osterhaus, J.

Makar and M.K. Thomas, JJ., concur.