TUSH EE LEWIS HUNTER v. STATE OF FLORIDA (2017)

We granted review of Hunter v. State, 174 So. 3d 1011 (Fla. 1st DCA 2015), based on express and direct conflict with Dougherty v. State, 149 So. 3d 672 (Fla. 2014), and Macaluso v. State, 12 So. 3d 914 (Fla. 4th DCA 2009). Upon further consideration, we have determined that jurisdiction was improvidently granted and therefore discharge review.

It is so ordered.

We originally granted discretionary review of Hunter v. State, 174 So. 3d 1011 (Fla. 1st DCA 2015), because it expressly and directly conflicted with our decision in Dougherty v. State, 149 So. 3d 672 (Fla. 2014), and the decision of the Fourth District Court of Appeal in Macaluso v. State, 12 So. 3d 914 (Fla. 4th DCA 2009). The majority has now determined that jurisdiction was improvidently granted. I disagree and therefore dissent.

It is undisputed that the trial court failed to enter a written order declaring Hunter competent to proceed. The question before us was whether the trial court held the appropriate competency determination before proceeding to trial. The record before us indicates that no such determination occurred. Indeed, the district court and the state point to the trial judge's noncommittal response on two separate occasions to demonstrate that the required hearing occurred.

The state points to a conversation that occurred on July 23, 2012, when the competency hearing was scheduled to occur:

HILLEY [Defense Counsel]: Your Honor, with Mr. Hunter, I kinda want to walk you through. He was arrested last year. He had been committed to the state hospital, I believe two different times throughout his life for insanity. The problem was that the records from those have been more than seven years. They're old and nobody had a copy of them and we have not been able to get a copy of that. We made a diligent effort, including an investigator and we couldn't get it.

He was evaluated by Ms. Bailey – Dr. Bailey and based on the information she had, she didn't have enough information to find him insane at the time. She did find him incompetent. The State Attorney's office had another doctor evaluate him and determined that he was not competent at the time and he was sent to Chattahoochee, at which time, after the first day there, he was placed in solitary and not left alone. He has been supervised on one-on-one and not left alone without a guardian the entire time at the state hospital.

They found him that he's competent to proceed but there's no evaluation on insanity. I talked to Mr. Barnes at the county jail. Mr. Barnes has been following him every [sic] since his arrest including his visitations to the state hospital. And also with my understanding was that the state doctor that did the evaluation of competency, would have also found him insane. But she wasn't asked that question. So that – that's just what I heard. I don't have any evidence to that.

With him being in con – in contact there's some allegations – some incidents that took place at the state hospital and then the State Attorney and Mr. Barnes is [sic] also involved in – informed me of some incidents that happened at the county jail. Based on that I talked with Mr. Barnes and again at the county jail and this morning outside of the court. And I would be asking if he would make a statement to the court, as far as he is competent to proceed but there's still a question about sanity, sanity at the time, and sanity now. And it's my understanding that you can be both competent and insane. I would be, after talking to Mr. Barnes and he'll testify to this, it would be a good idea to have him re-evaluated again because now we've had him for a year. And we have information that we can in fact ask for another evaluation by either Dr. Perry or Dr. Larson, whoever. The earliest one I could get to do the evaluation based on him and his history with the state hospital over the last few months, the history at the jail, his actions. And I think that Mr. Barnes will support me on that. In fact, I think that it was – we discussed it – he'll probably even more than support me on that. I don't know if the State is going to be objecting to it or not but I would call Mr. Barnes right now.

THE COURT: Okay. Hold on one second. Let me talk to the State. One thing that was interesting is that, I read through the report, and I saw different findings in there. But I didn't see the strong language that there was in the cover letter that was done by the staff assistant, not the same doctor. The staff assistant says, competent to proceed, no longer meets criteria. But unless I just overlooked it, I didn't see that in the report. I saw again, a lot of different findings but I never saw a real firm conclusion. But again, it was a lot of pages and I may have missed it.

REED [Assistant State Attorney]: Judge, I'd have to go back through the report and find that for you. If it's an issue of sanity at the time of the offense, Mr. Hunter was never evaluated for that. So if that's the issue now, the State would object to that sort of evaluation. But another competency eval [sic] is a different story.

HILLEY: Your Honor, we're asking for insanity at the time and insanity at this time – at the present time. And that's – Mr. Barnes just – did you have a copy of the letter from Mr. Barnes' [sic], your Honor.

THE COURT: No, sir, I didn't.

HILLEY: May I approach? Mr. Barnes just gave it to me this morning?

THE COURT: Please. Okay. Thank you.

HILLEY: Based on the information, the competency has been determined by Mr. Barnes – well, based on the information from the state hospital, even though they placed him in solitary confinement, they would not let him be by himself. They're saying that he's competent. But I think the insanity issue is an issue of at the time and presently. And I think that's what John – I'm sorry, Mr. Barnes is –

THE COURT: Well, let's take that for granted. I've never had this situation before. But if he's competent to proceed then – then is there – then isn't it your burden to prove that he's insane at the time of incident, I'm –

HILLEY: Or I could still –

THE COURT: But then, insane now, I'm just not – I'm still trying to figure out where –

HILLEY: Yes, Your Honor.

THE COURT: – how does that effect [sic] the ability of the court to go forward?

HILLEY: He can be competent to understand the trial but still be insane at the time. I've never heard of that before but I was informed of that about fifteen minutes ago.

THE COURT: Okay. But if he is, let's take that for granted. What is – what does the law say if he's found insane at this time? How does that effect [sic] going to trial?

(emphasis added). Defense counsel then stated he would need time to research and would return to the next status conference, set for August 16, with caselaw. The case was then continued to August 16, 2012. The First District relies on a conversation that occurred at the August 16 status conference:

HILLEY: Judge, I got another letter from Mr. Barnes, that inside medical isolation, he's inside the isolation of the isolation [sic] because I came down to see him and he was strapped down because he tried to kill himself again.

I couldn't see him the other day. There's indication, my motion for – he was insanity (sic) at the time – but I've been talking with Mr. Barnes. I think he's competent to proceed and I've never heard of this before and I'm trying to do research on it, Judge.

He's competent to proceed for competency but he still could be insane at the time, today.

THE COURT: Okay.

HILLEY: And can I file, I guess I would file a motion to ask for an insanity, presently, if the State was going to object or I can just put the order in. I mean, that has no bearing on it.

REED: Proceed, Judge. I think if he wants to do something like that just for your own knowledge, you'd have to pay for it yourself. I don't think the JAC is going to pay for something like that.

HILLEY: If he's insane right now then he can't be tried.

REED: No, it's incompetent, right now or insane at the time of the offense. It's two different –

HILLEY: No, those are the procedurally. [sic] We've never had one insane right now in competency. I'm trying to do the research, Judge, and – and cause it's just I've never had that ever.

REED: Well, if you could set this for hearing, Judge, so –

HILLEY: We do have the order – it's either to you or it's on the way to you.

THE COURT: You got a motion that's coming to me?

HILLEY: No. The order for the insanity at the time.

The Court: Okay.

HILLEY: And he's not objecting to that.

Reed: No, we're not objecting to that, Judge. It's insanity, currently.

THE COURT: Right.

HILLEY: And I've never had that insane now but competency. But –

THE COURT: Okay. So what do you want to do?

HILLEY: We want to continue it, Judge. ․

(emphasis added). The case was again continued and set for status conference on August 29, 2012.

The State frames this issue as whether the trial court's response of “okay” was sufficient under rule 3.212 to count as a determination of competency. However, we must take one step back and ask what that response, if it was one, was in response to. Therein lies the conflict. The defense attorney stated that his client was competent to proceed, and the trial court said “okay.” In any other court, that would be called a concession, not a hearing.

Our holding in Dougherty was clear: “a defendant's stipulation to his own competency does not absolve the trial court from its duty to independently make a determination of a defendant's competency to proceed.” Dougherty, 149 So. 3d at 673. Yet, in its decision in Hunter, the First District opines that a trial judge's response of “okay” to defense counsel's statement that the defendant is competent to proceed is a sufficient competency determination. Hunter, 174 So. 3d at 1014 (based on defense counsel's statement that Hunter was competent to proceed, and the trial court's response of “okay,” the First District “construe[d] the trial court's affirmative response to defense counsel ․ as an oral determination of Hunter's competency”). Where the record demonstrates that no other questioning, discussion, or review took place, it is clear to me that the trial court's affirmative response, if it is even properly called one, was to a concession by defense counsel. Because we have held that defense counsel may make no such concession in lieu of the trial court holding a competency hearing, these cases stand in direct and express conflict.

I therefore dissent.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

A True Copy

Test:

John A. Tomasino Clerk, Supreme Court

two

Served:

WILLIAM PAFFORD

TRISHA MEGGS PATE

ROBERT CHARLES LEE

GLEN PHILLIP GIFFORD

HON. JOHN T. BROWN, JUDGE

HON. J.D. PEACOCK, II, CLERK

HON. JON S. WHEELER, CLERK

LABARGA, C.J., and PARIENTE, CANADY, POLSTON, and LAWSON, JJ., concur. LEWIS, J., dissents. QUINCE, J., dissents with an opinion.