Aquino v. State

290 So.3d 525

Ignacio AQUINO, Jr., Appellant,

v.The STATE of Florida, Appellee.

No. 3D18-751

District Court of Appeal of Florida, Third District.

Opinion filed November 13, 2019

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa and Shannon Hemmendinger, Assistant Public Defenders, for appellant.

Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.

Before LOGUE, SCALES and GORDO, JJ.

SCALES, J.

Ignacio Aquino, Jr. appeals two orders revoking his probation, respectively, in lower tribunal case numbers F08-20310 and F10-000631. As more fully described below, we remand to the trial court either to make a nunc pro tunc determination of Aquino's competence or to adjudicate Aquino's current competence anew, and, if competent, conduct a new hearing on Aquino's alleged probation violations.

I. Background

In September 2008, Aquino entered a nolo contendere plea and was found guilty of two, third-degree felony counts of child abuse without great bodily harm (case number F08-20310). The trial court withheld adjudication and sentenced him to six years of probation.

In June 2011, after Aquino entered another nolo contendere plea, the trial court found Aquino guilty of grand theft in the first degree, exploitation of the elderly, contracting without a license, and resisting arrest without violence (case number F10-000631). The trial court simultaneously revoked Aquino's probation in case F08-20310 and sentenced Aquino, in both F08-20310 and F10-000631 concurrently, to a twenty-two-month prison term to be followed by three years of probation. In the order of probation violation in F08-20310, the trial court added the special condition that Aquino should not have unsupervised contact with minor children.

In 2015, after Aquino had served the incarceration portion of his sentence and while he remained on probation in F08-20310 and F10-000631, the State charged Aquino with new criminal violations: lewd and lascivious molestation of a child between the ages of twelve and sixteen, unsupervised contact with a minor, and false imprisonment (case number F15-11935). The State also filed a "3rd Amended Affidavit Violation of Probation" seeking to revoke Aquino's probation based on these alleged new law violations.

Before the probation revocation hearing occurred, though, Aquino's counsel, during an April 26, 2017 hearing, orally requested the trial court to order a competency evaluation of Aquino.¹ The trial court appointed two doctors. Both doctors examined Aquino in early May of 2017, and pronounced him competent to proceed in the probation revocation hearing.

At a brief status hearing on May 10, 2017, attorneys for the State and Aquino advised the trial court that they had received and reviewed the two doctor evaluations of Aquino. The attorney for the State advised the trial court that the doctors had found Aquino competent to proceed; then, the attorney for the State and Aquino's attorney both stipulated to the doctors' competency determinations. There was no further discussion about Aquino's competency at this hearing or at any subsequent pre-revocation hearing. Importantly, the trial court made no finding of competency; he merely accepted counsel's stipulation as to the admissibility of the doctors' reports and the competency conclusions contained therein.

Approximately eleven months later, on March 29, 2018, the trial court conducted the probation revocation hearing. At the conclusion of this hearing, the trial court found by a preponderance of the evidence that Aquino had violated his probation by committing new law violations and entered the two orders on appeal that revoked Aquino's probation in F08-20310 and F10-000631.² The revocation orders resulted in the trial court sentencing Aquino to thirty-five years in prison. On April 17, 2018, Aquino filed his notice of appeal challenging the revocation orders.

Eleven days later,³ on April 9, 2018, the trial court conducted a pre-trial hearing related to F15-11935 (Aquino's 2015 charges). At this hearing, both the attorney for the State and Aquino's attorney raised a concern about Aquino's competency to proceed to trial in F15-11935 based on their observations of Aquino at the March 29, 2018 probation revocation hearing. Again, the trial court appointed two doctors – different doctors from those who evaluated Aquino the previous year – to examine Aquino and report to the court. The first of these two evaluations, dated May 20, 2018, found Aquino not competent to proceed; two subsequent evaluations in June of 2018, though, found Aquino competent to proceed to trial in F15-11935.

On November 8, 2018, the trial court conducted a pre-trial competency hearing in F15-11935. The trial court found Aquino competent, and stated further that Aquino "was competent at the time of the probation revocation hearing."⁴

The notice of appeal in this case, filed on April 17, 2018, as amended on August 31, 2018, pertains to – and, as explained in footnote 3, supra, our review is limited to – the final orders of revocation of probation and the accompanying prison sentences entered in F08-20310 and F10-000631.⁵

II. Analysis⁶

Aquino argues that the trial court erred by failing to make its own, independent competency determination prior to conducting the March 29, 2018 hearing on Aquino's probation revocation. We agree.

A. Requirement of an Independent Competency Determination by the Trial Court

A trial court must make its own determination as to competency; the doctor evaluations are advisory only. Losada v. State, 260 So. 3d 1156, 1162 (Fla. 3d DCA 2018) (citing Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014) ). The trial court cannot base competency solely on the parties' stipulation, id. at 1162, and it is an abuse of the trial court's discretion to fail to make its own legal determination of competency. Id. at 1163.

Once the trial court appointed doctors to undertake competency evaluations of Aquino, the trial court was obligated to make its own independent competency determination. Baker v. State, 221 So. 3d 637, 639-40 (Fla. 4th DCA 2017). We find unpersuasive the State's argument that: (i) Aquino is presumed competent; (ii) the record offered no "reasonable basis" to doubt his competency; and therefore, (iii) there was no need to proceed to a competency hearing. In this case, once the trial court acceded to the request to appoint doctors to evaluate Aquino, the trial court was required to follow through with a competency hearing and to make an independent competency determination. Fla. R. Crim. P. 3.212 ; Dougherty, 149 So. 3d at 676 ("[I]t is necessary for courts to observe the specific hearing requirements set forth in the rules in order to safeguard a defendant's due process right to a fair trial and to provide the reviewing court with an adequate record on appeal.").

Because the trial court – despite setting in motion the competency evaluations of Aquino – neither conducted a competency hearing nor made an independent competency determination, we conclude the trial court erred in entering the March 29, 2018 probation revocation orders.

B. The Remedy on Remand

1. Introduction

Our holding, above, raises the more difficult question of what remand instruction to give to the trial court. Aquino argues we should reverse the subject probation orders and require the trial court to conduct a new competency hearing, to be followed by a new probation revocation hearing if Aquino is deemed competent. Conversely, the State argues we should remand with instructions to the trial court to conduct a nunc pro tunc competency hearing, where the trial court would make a retrospective competency determination based on the evidence available at the time of the probation revocation hearing. As more fully explained below, we leave this decision to the trial court to make upon remand.

2. Florida's General Remand Rule Per Mason/Dougherty

"Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand." Dougherty, 149 So. 3d at 678-79. The Dougherty Court, though, citing its prior decision in Mason v. State, 489 So. 2d 734, 737 (Fla. 1986), went on to recognize that, in some cases, a trial court may conduct a nunc pro tunc hearing to determine competency. Id. at 679.

Indeed, in Mason, the Court concluded "that no per se rule exists in Florida forbidding a nunc pro tunc competency determination regardless of the surrounding circumstances." Mason, 489 So. 2d at 737. The Mason Court remanded to the trial court the determination of competence noting that the trial court, on remand, "may find that there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing." Id. (quoting Martin v. Estelle, 583 F. 2d 1373, 1375 (5th Cir. 1978) ). Recognizing the inherent problems with a post-hoc competency determination – such as reliance upon a cold record and lack of recent examinations of the defendant – the Mason Court expressly cautioned that "[s]hould the trial court find, for whatever reason, that an evaluation of Mason's competency at the time of the original trial cannot be conducted in such a manner as to assure Mason due process of law, the court must so rule and grant a new trial." Id.

In sum, the remand rule we synthesize from Mason and Dougherty is that, depending on the circumstances of the case, a trial court may make a retroactive competency determination so long as the defendant is assured due process. It appears, though, that under Mason and Dougherty, the decision as to whether the case's circumstances and due process considerations warrant a new trial or a nunc pro tunc competency determination is left to the trial court to make upon remand. See Bynum v. State, 247 So. 3d 601, 604 (Fla. 5th DCA 2018) (remanding to the trial...