>> SUPREME COURT OF FLORIDA IS

NOW IN SESSION.

PLEASE BE SEATED.

>> THE NEXT CASE FOR THE DAY IS

DOUGHERTY V. STATE OF FLORIDA.

YOU MAY PROCEED.

>> THANK YOU, MR. CHIEF JUSTICE,

AND MAY IT PLEASE THE COURT, MY

NAME IS CARLOS GONZALEZ, AND I

REPRESENT BERNARD DOUGHERTY.

FLORIDA LAW REQUIRES THAT ANY

INDIVIDUAL ABOUT TO STAND TRIAL

BE FOUND COMPETENT.

THE RULE EXTENDS TO ALL MATERIAL

PROCEEDINGS OF THE TRIAL

PROCEEDINGS INCLUDING

SENTENCING.

>> LET -- LET ME ASK, IF I

COULD, KIND OF A PRELIMINARY,

STRUCTURAL QUESTION.

I DON'T UNDERSTAND HOW SOMEBODY

CHALLENGES THE VALIDITY OF A

CONVICTION NEARLY TEN YEARS

AFTER CONVICTION HAS BECOME

FINAL IN THE CONTEXT OF A

PROCEEDING FOR A RESENTENCING

THAT IS MADE NECESSARY BY A 3800

PROCEEDING.

I JUST DON'T -- I MEAN, THIS IS

ABOUT, THIS 3800 PROCEEDING IS

ABOUT THIS SENTENCE SO NOT ABOUT

THE CONVICTION.

AND SO I DON'T UNDERSTAND HOW

THIS CAN BE BROUGHT UP IN THE

CONTEXT WHERE IT WAS BROUGHT UP

HERE.

THIS MAY BE A -- THERE MAY BE A

WAY TO DO IT EVEN AFTER THIS

LONG PASSAGE OF TIME.

MAYBE.

BUT I DON'T -- HOW CAN THIS BE

BROUGHT UP IN THE CONTEXT OF A

SENTENCING HEARING?

HOW CAN THE CHALLENGE TO THE

VALIDITY OF THE UNDERLYING

CONVICTION BE BROUGHT UP IN THE

CONTEXT OF THESE RECENT

PROCEEDINGS?

>> JUSTICE CANADY, YOU'RE

CORRECT.

THE PROCEEDINGS IN THIS CASE ARE

LENGTHY AND ARE SOMEWHAT

CONVOLUTED, CERTAINLY, AS THE

RECORD DEMONSTRATES.

BUT SEIZING ON YOUR QUALIFIER, I

THINK THAT THIS CASE DOES ALLOW

FOR THIS COURT TO REACH THE

ISSUE, AND IT'S NOT, YOUR HONOR,

A QUESTION OF THE VALIDITY OF

THE UNDERLYING CONVICTION.

I THINK THAT IT IS A RESULT OF

WHAT THIS COURT ULTIMATELY

ACCOMPLISHES IF IT REVERSES THE

FIFTH DISTRICT COURT OF APPEALS'

DECISION.

BUT AT THE HEART OF THE ISSUE

HERE IS SIMPLY THE

INTERPRETATION THAT THE TRIAL

COURT GIVES AND, MORE

IMPORTANTLY, THIS COURT GIVES TO

THE TRIAL JUDGE'S MANDATE TO

INSURE THAT A DEFENDANT IS

COMPETENT --

>> BUT THAT'S A TRIAL THAT

HAPPENED A LONG TIME AGO.

>> RIGHT.

>> AND THERE WAS AN OPPORTUNITY

FOR A DIRECT APPEAL.

>> CORRECT.

>> THERE WAS AN OPPORTUNITY FOR

INEFFECTIVE ASSISTANCE OF

COUNSEL CLAIMS UNDER 3850.

THAT'S NOT WHAT HAPPENED.

WE'RE GOING BACK TO THIS TRIAL,

AND I DON'T UNDERSTAND HOW YOUR

ARGUMENT REALLY IS ANYTHING

OTHER THAN A COLLATERAL ATTACK

ON THE CONVICTION.

>> WELL, TWO RESPONSES TO THAT,

JUSTICE CANADY.

FIRST, MR. DOUGHERTY HAS

CHALLENGED THE ISSUE OF

COMPETENCE THROUGHOUT THE

UNDERLYING PROCEEDINGS.

IT'S NOT A SUCCESSIVE ISSUE,

THOUGH, BECAUSE AT EACH POINT

ALONG THE WAY THE COURTS HAVE

NEVER DIRECTLY ADDRESSED THE

ISSUE OF THE TRIAL JUDGE'S ROLE

IN DETERMINING HIS COMPETENCY

PRIOR TO TRIAL, POINT NUMBER

ONE.

POINT NUMBER TWO, ON A REMAND

FROM THE FIFTH DISTRICT COURT OF

APPEALS WHEN THAT COURT FINALLY

SAID YOUR SENTENCE AS A HABITUAL

FELONY OFFENDER WITH RESPECT TO

COUNT TWO IS INVALID, THERE THE

ATTORNEYS AGAIN RAISED THE ISSUE

OF MR. DOUGHERTY'S COMPETENCE.

AND AT THAT POINT IN TIME, AT

THE -- I BELIEVE IT WAS THE JULY

HEARING BEFORE THE TRIAL COURT

ON REMAND -- THERE THE ASSISTANT

PUBLIC DEFENDER WHO WAS

REPRESENTING MR. DOUGHERTY AT

THE TIME MADE CLEAR THAT

MR. DOUGHERTY WAS ASSERTING THAT

HE WAS NOT COMPETENT AT TIME OF

TRIAL AND THAT HE WAS NOT

COMPETENT AT THAT POINT.

YES, SIR.

>> THAT WAS JULY OF 2010.

>> YES, SIR.

>> THE LAST TIME PRIOR TO THAT

THAT THE QUESTION OF COMPETENCY

WAS ON FEBRUARY 28, 2003 --

>> CORRECT.

>> -- AND THAT'S WHEN HE WAS

TRIED, THE TWO-DAY TRIAL WHERE

HE WAS FOUND GUILTY.

SO YOU HAVE A SEVEN-YEAR PERIOD,

AS JUSTICE CANADY MENTIONED,

WHERE IT WASN'T RAISED AT ALL.

WHY WASN'T IT RAISED ON DIRECT

APPEAL?

>> THE ISSUE WHY IT WASN'T

RAISED ON DIRECT APPEAL IS NOT A

QUESTION THAT I CAN ANSWER, YOUR

HONOR.

I DO NOT KNOW WHY COUNSEL AT

THAT TIME DID NOT CHALLENGE THE

ISSUE OF MR. DOUGHERTY'S

COMPETENCE.

BUT EVEN IF YOU BELIEVE, YOUR

HONOR, THAT THE 2003 QUESTION OF

COMPETENCY HAS BEEN WAIVED OR

HAS NOT BEEN PROPERLY PRESERVED,

YOU STILL DO HAVE A LINGERING

QUESTION OF COMPETENCY THAT

ARISES ON REMAND FROM THE

FIFTH --

>> LET ME TALK, LET ME ASK YOU A

FEW QUESTIONS ABOUT WHAT

ACTUALLY HAPPENED.

>> YES, SIR.

>> MY UNDERSTANDING FROM THE

TRANSCRIPT YOU HAD A COMPETENCY

HEARING, AT LEAST THE CASE WAS

SCHEDULED FOR A COMPETENCY

HEARING, ON SEPTEMBER THE 10,

2003.

AND ON THAT DAY DEFENSE COUNSEL

SAID, AND I QUOTE: "WE DID GET

THE EVALUATIONS BACK FROM THE

THREE DOCTORS, SO WE WILL

STIPULATE -- WE WILL

STIPULATE -- THAT HE IS

COMPETENT TO PROCEED."

NOW, DEFENSE COUNSEL PRETTY MUCH

STIPULATED THAT HIS CLIENT WAS

COMPETENT TO PROCEED.

WOULD YOUR ARGUMENT BE DIFFERENT

OR PERHAPS WOULD YOU HAVE NO

ARGUMENT IF THE COURT HAD SAID

"I HEREBY FILE THE THREE

REPORTS"?

IF THE STATE AND DEFENSE

STIPULATE TO THE FINDINGS IN THE

REPORTS AND THE CONCLUSIONS OF

THE DOCTORS AND THE COURT

ACCEPTS THAT STIPULATION, IS

THAT A SUFFICIENT FACTUAL BASIS

FOR THE COURT TO MAKE A

DETERMINATION THAT HE WAS

COMPETENT?

>> I THINK, JUSTICE LABARGA,

THAT YOU ARE RIGHT ON THE POINT

THAT I THINK THIS CASE RAISES.

THE STIPULATION AT THE END OF

THE DAY IS NOT OUR COMPLAINT.

WE DON'T OBJECT TO THE FACT THAT

THE PARTIES STIPULATED TO THE

FOUR CORNERS OF THE EVIDENCE

THAT THE TRIAL COURT JUDGE COULD

REVIEW.

THIS COURT HAS SAID YOU CAN DO

IT, AND WE DON'T OBJECT TO THAT.

THE ISSUE IS WHAT THE COURT DOES

AFTER THAT STIPULATION.

A STIPULATION, AS I THINK THIS

COURT'S PRIOR RULINGS ESTABLISH,

IS ONLY ASKED OF THAT QUANTUM OF

EVIDENCE THAT THE TRIAL COURT

CAN THEN CONSIDER IN MAKING AN

INDEPENDENT DETERMINATION AS TO

WHETHER OR NOT THE DEFENDANT IS

COMPETENT.

SO IN BROWN THIS COURT HELD, AS

LONG AGO AS 1971, THIS COURT

HELD THAT PSYCHIATRIC REPORTS

ARE ADVISORY.

BUT AT THE END OF DAY, THE

RESPONSIBILITY TO MAKE A

DETERMINATION OF COMPETENCY LIES

WITH THE TRIAL COURT, AND SO --

>> SO THE COURT SHOULD HAVE

ISSUED A WRITTEN ORDER BASICALLY

SAYING THAT BASED ON THE

FINDINGS BY THE DOCTORS IN THE

REPORTS THE COURT CONCLUDES THAT

THE DEFENDANT IS COMPETENT TO

PROCEED?

>> I BELIEVE THAT WOULD BE THE

IDEAL PRACTICE, YOUR HONOR.

AND IN THE ABSENCE OF A WRITTEN

ORDER, CERTAINLY SOME RECORD

EVIDENCE THAT THE TRIAL COURT ON

THE RECORD VERBALIZED AN

INDEPENDENT CONSIDERATION OF THE

RECORD EVIDENCE AND REACHED A

DETERMINATION BASED ON THAT

RECORD EVIDENCE THAT THE

DEFENDANT WAS COMPETENT OR

INCOMPETENT AS THE CASE MAY BE.

>> DOES OUR RECORD HERE INCLUDE

THE RECORD OF THE TRIAL

PROCEEDINGS?

>> YOU HAVE, YOUR HONOR, THE

RECORD OF THE SENTENCING OF WHAT

WAS CALLED THE COMP REVIEW IN

THE ORIGINAL TRIAL COURT

PROCEEDINGS.

YOU DON'T HAVE A COMPLETE RECORD

AS TO WHAT HAPPENED AT TRIAL.

YOU DO HAVE BITS AND PIECES OF

THAT RECORD BASED ON THE

ATTACHMENTS THAT THE TRIAL COURT

SUBSEQUENTLY INCLUDED IN DENYING

MOTIONS FOR POSTCONVICTION

RELIEF FILED BY MR. DOUGHERTY.

>> SO AT THE TRIAL COURT'S

PROCEED -- IF THE TRIAL COURT'S

PROCEEDING WITH WHATEVER TOOK

PLACE AFTER THIS HEARING IS NOT

SUFFICIENT TO DEMONSTRATE THAT

THE TRIAL JUDGE ACCEPTED THAT

THE REPORTS AND THE STIPULATION

INDICATED THAT THIS GUY WAS

COMPETENT TO PROCEED.

>> CORRECT, JUSTICE QUINCE.

WHAT YOU HAVE IS LEADING UP TO

TRIAL FROM THE TIME OF ARREST

THROUGH THE INITIAL DOCKET

SOUNDINGS AND THEN THE ULTIMATE

TRIAL, YOU DO HAVE TWO

INDEPENDENT FINDINGS THAT MR.

DOUGHERTY IS INCOMPETENT.

HE IS TWICE COMMITTED FOR

REHABILITATION, IF THAT'S THE

APPROPRIATE WORD --

>> PRIOR TO THE PROCEEDING WHERE

DEFENSE TRIAL STIPULATED HE WAS

COMPETENT.

>> THAT IS CORRECT.

>> OKAY.

>> THAT IS CORRECT.

>> AFTER THAT TIME THERE'S AN

ORDER, PEOPLE ARE APPOINTED TO

EXAMINE HIM --

>> TWICE.

>> OKAY.

AND THEN THESE REPORTS COME

BACK, AND WE HAVE THE

STIPULATION BASED ON THESE

REPORTS.

AND THE TRIAL JUDGE, WHILE HE

DIDN'T SAY ANYTHING, OBVIOUSLY

PROCEEDED TO THE NEXT STEP,

SET THE CASE FOR TRIAL AND

PROCEEDED TO TRIAL, CORRECT.

SO THERE IS --

>> SO, IN EFFECT, WE HAVE TODAY

A DEFENDANT WHOSE COMPETENCY HAS

NOT BEEN DETERMINED?

>> THAT IS OUR POSITION, YOUR

HONOR, THAT DEFENDANT'S

COMPETENCY HAS NOT BEEN

DETERMINED PURSUANT TO THE CLEAR

REQUIREMENTS OF RULE 3.212.

>> SO YOU'RE ASKING US FOR A NEW

TRIAL.

>> YOUR HONOR, WHAT I'M ASKING

HERE TODAY IS FOR A REVERSAL OF

THE FIFTH DISTRICT COURT OF

APPEALS' DETERMINATION THAT THE

TRIAL COURT'S FINDING THAT THE

PARTIES HAD STIPULATED TO

COMPETENCY WAS SUFFICIENT.

NOW, IF THE RESULTS OF THAT IS

NECESSARILY A NEW TRIAL, THEN

THAT BECOMES A CONSEQUENCE OF

THIS COURT'S DECISION.

BUT, AND I DON'T DISPUTE,

JUSTICE LABARGA, I DON'T DISPUTE

THAT A NEW TRIAL WOULD BE THE

LIKELY PRODUCT OF A REVERSAL BY

THIS COURT.

BECAUSE ALL THAT YOU HAVE RIGHT

NOW IS THE TRIAL JUDGE

STIPULATING -- RATHER, THE TRIAL

JUDGE ACCEPTING THE STIPULATION.

>> IS IT POSSIBLE TO REMAND THE

CASE AND IF THE REPORTS THAT THE

COURT CONSIDERED BACK THEN OR AT

LEAST THAT THE DEFENSE COUNSELS

HAD BACK THEN ARE STILL

AVAILABLE, IS IT POSSIBLE FOR

THOSE REPORTS TO BE FILED IF

THERE'S A STIPULATION, OR IF

THERE ISN'T A STIPULATION, THAT

THE DOCTORS -- IF THEY'RE STILL

ALIVE -- CAN COME IN AND

TESTIFY, AND IT BE DONE THAT

WAY?

>> LET ME GIVE YOU MY SORT OF

NONEXPERT, PRACTICAL RESPONSE TO

THAT, JUSTICE, AND THAT IS THIS:

I'M NOT A MENTAL HEALTH EXPERT,

BUT I DO BELIEVE THAT WITH THE

PASSAGE OF TIME AND WITH

WHATEVER CONDITIONS THAT

MR. DOUGHERTY HAS BEEN KEPT IN

WHILE A RESIDENT OF THE

DEPARTMENT OF CORRECTIONS, IT

MAY BE NECESSARY TO --

>> IT WOULDN'T BE A

DETERMINATION AS TO WHAT HIS

MENTAL STATE OF MIND IS TODAY,

BUT THEY CAN RECONSTRUCT THE

RECORD IF THEY CAN WITH THE

REPORTS AND MAKE THE

DETERMINATION AS TO HIS

COMPETENCY BACK THEN.

>> I THINK YOU'D HAVE TO GO,

CERTAINLY, BACK TO THE POINT

OF TRIAL.

BUT I THINK YOU'D ALSO HAVE TO

MOVE FORWARD AS WELL TO THE

POINT WHERE THE FIFTH DISTRICT

COURT OF APPEAL REMANDS FOR

RESENTENCING ON COUNT TWO WHICH

WAS THE IMPROPERLY HABITUALIZED

COUNT.

>> CAN I GO BACK TO WHAT JUSTICE

CANADY SAID?

BECAUSE I'M CONCERNED ABOUT --

FIRST OF ALL, I AGREE WITH YOU

THAT A JUDGE SHOULD BE ENTERING

AN ORDER CONTEMPORANEOUSLY

MAKING A FINDING.

I MEAN, THAT'S -- WE UNDERSTAND

THAT.

BUT THIS IS BEING BROUGHT UP AS

SUPER FUNDAMENTAL ERROR.

THAT IT IS AS IF THE CONVICTION

IS, CAN BE ATTACKED AT ANY TIME

WITHOUT ANY -- TWO YEARS, FIVE

YEARS, TEN YEARS?

WHERE -- AND WITH NO INDICATION

THAT TRIAL COUNSEL THOUGHT THERE

WAS SOMETHING PROBLEMATIC ABOUT

THIS DEFENDANT, WITH NO

INDICATION ON -- HE WAS

PROCEEDING PRO SE.

I MEAN, YOU'RE HERE AS PRO BONO

COUNSEL, SO WE'RE NOT SHOOTING

THE MESSENGER HERE --

>> THANK YOU.

[LAUGHTER]

>> BUT HE WAS ABLE TO REPRESENT

HIMSELF.

THERE'S NO INDICATION THAT HE IS

NOT COMPETENT TO BE RESENTENCED.

SO I'M HAVING -- TELL ME IN WHAT

OTHER AREA OF THE LAW, CRIMINAL

LAW, WE WOULD ALLOW THIS WHICH

LOOKS TO BE MORE OF A PROCEDURAL

BUT IMPORTANT STEP COULD BE

RAISED AT ANY TIME?

>> YOU'RE ABSOLUTELY CORRECT,

YOUR HONOR.

BUT LET ME TELL YOU WHY I THINK

THAT WE CAN SIDESTEP YOUR

CONCERNS.

FIRST, IN MY REVIEW OF THE

EXISTING CASE LAW, I DON'T SEE A

CASE IN THE CONTEXT OF A

SENTENCING ISSUE DEALING WITH

COMPETENCY.

I DON'T SEE A SIMILAR CASE.

NOW, YOU'RE RIGHT --

>> BUT I DON'T SEE, DO YOU SEE A

SIMILAR -- THE INTEGRITY OF THE

CONVICTION, ALL RIGHT?

AS JUSTICE CANADY SAID, THIS WAS

COMING UP IN RESENTENCING.

AND THE ISSUE WAS AT THIS POINT,

WELL, WAS HE COMPETENT TO BE

SENTENCED.

BUT WAS HE COMPETENT TO BE ABLE

TO ASSIST COUNSEL IN HIS TRIAL

BELOW.

SO WITH NO OTHER INDICATION THAT

HE WASN'T, WE'RE GOING TO SAY

THAT HE GETS A NEW TRIAL.

THIS COULD BE BROUGHT UP IN 40

YEARS FROM NOW.

THERE'S NO OTHER, THERE IS NO

OTHER PROCEDURAL DEFAULT THAT

AFFECTS A CONVICTION.

I MEAN, WE HAVE SENTENCING THAT

GOES 3.800A THAT COULD BE, YOU

KNOW, A LEGAL SENTENCE, BUT WHAT

CONVICTION ISSUE CAN BE, YOU

KNOW, THAT HE GETS A NEW TRIAL?

NO NEWLY-DISCOVERED EVIDENCE, NO

ANYTHING TEN YEARS AFTER THE

FACT.

>> YOUR HONOR, FRANKLY, I CAN'T

POINT YOU TO A SIMILAR

SITUATION.

BUT WHAT I CAN SAY IS THAT THIS

CASE DOES RAISE UNIQUE ISSUES.

AND IT'S UNIQUE FOR A COUPLE OF

REASONS.

FIRST, WE ARE TALKING -- AND I

KNOW THE COURT'S CONCERN.

THE COURT IS CONCERNED BECAUSE

OF THE PASSAGE OF TIME AND THE

FACT THAT ITS RULING HERE WOULD

EFFECTIVELY GRANT MR. DOUGHERTY

A NEW TRIAL.

RECALL THAT WE ARE FOCUSING HERE

ON A VERY IMPORTANT ASPECT OF

THRESHOLD -- A THRESHOLD ASPECT

OF CRIMINAL LAW WHICH IS THE

COMPETENCY OF AN INDIVIDUAL TO

STAND TRIAL.

AND SO I DON'T BELIEVE, YOUR

HONOR, THAT IF YOU GRANT A

REVERSAL IN THIS CASE THAT

YOU'RE NECESSARILY GOING TO BE

OPENING THE FLOODGATES TO

LITIGATION --

>> IT'S NOT LIKE THEY DIDN'T

ADDRESS IT AT ALL.

THEIR RELIANCE WAS ON A

STIPULATION BY DEFENSE COUNSEL.

HERE YOU'RE SEEKING RELIEF WHEN

THERE'S BEEN NO SHOWING OF

PREJUDICE AT ALL OR THAT THE

DEFENSE COUNSEL WAS INCORRECT IN

SOME WAYS.

>> TWO RESPONSES, JUSTICE

POLSTON.

IT'S NOT DEFENSE COUNSEL'S ROLE

TO STIPULATE TO COMPETENCY.

IT IS ONLY THE PARTY'S RIGHT TO

STIPULATE TO THE EVIDENCE THAT

THE TRIAL COURT MAY FIND OR MAY

CONSIDER TO DETERMINE

COMPETENCY.

AND SECOND, TO COMPLETE MY

ANSWER TO JUSTICE PARIENTE --

>> BUT ISN'T WHEN A LAWYER SAYS

WE HAVE THE REPORTS, WE'LL

STIPULATE, IS THAT THE SAME OR

IS THAT DIFFERENT FROM A LAWYER

WALKING IN JUST SAYING WE WILL

STIPULATE WITHOUT REFERENCE TO

THE REPORTS?

>> I THINK FUNCTIONALLY IT'S THE

SAME, JUSTICE LEWIS.

>> OKAY.

I MEAN, THAT'S WHAT HAPPENED

HERE.

HE SAID WE HAVE REPORTS.

>> UH-HUH.

AND IN THE FOURTH DISTRICT COURT

OF APPEALS THERE THE DEFENSE

ATTORNEY ALSO SAID SIMILARLY

THAT THE PUBLIC DEFENDER'S

OFFICE HAD OBTAINED THE REPORTS

AND THAT THE DEFENDANT WAS

COMPETENT.

AND WITH ALL DUE RESPECT TO MY

COLLEAGUES IN THE BAR, VERY FEW

LAWYERS, I BELIEVE, ARE EXPERTS,

SUCH EXPERTS IN MENTAL HEALTH

THAT THEY CAN MAKE THAT

DETERMINATION.

>> LET ME ASK YOU THIS, LET'S

ASSUME THAT THE THREE EXPERTS

COME BACK AND ALL THE REPORTS

SAY THIS DEFENDANT IS

INCOMPETENT.

BUT A TRIAL JUDGE LOOKS AT THOSE

AND THEN LOOKS DOWN AT THE

DEFENDANT AND SAYS, HE'S

COMPETENT.

>> WELL, INTERESTINGLY --

>> IS THAT, IS THAT A

SUSTAINABLE FINDING OF

COMPETENCY?

>> SECTION --

>> IF IT'S REDUCED TO AN ORDER?

>> QUESTIONABLY, JUDGE, BECAUSE

SECTION 916.12, SUBSECTION TWO

ALLOWS THE PARTIES TO STIPULATE,

FOR EXAMPLE, TO INCOMPETENCY.

BUT THAT STATUTORY PROVISION

THEN ALSO ALLOWS THE TRIAL COURT

TO HOLD A HEARING AND TO

CONSIDER OTHER EXPERT TESTIMONY.

SO IT'S ARGUABLE WHAT --

>> WELL, NO, NO, NO.

I'M GIVING YOU -- I MEAN, THIS

IS ALL THE EVIDENCE.

THE REPORTS SAY INCOMPETENT, AND

A TRIAL JUDGE SAYS, NO, I THINK

HE'S COMPETENT.

WE'RE GOING TO TRIAL.

>> I THINK THE LAW ALLOWS THAT

TRIAL COURT TO MAKE THAT

DISCRETION, BUT THERE WOULD HAVE

TO, OBVIOUSLY, BE A WELL

DEVELOPED RECORD TO --

>> NO, NO.

I'M SAYING WHAT WE HAVE HERE.

WE HAVE HERE A FINDING OF

COMPETENCY JUST AS IN MY

HYPOTHETICAL CASE WE HAVE

FINDINGS OF INCOMPETENCE.

DOESN'T A TRIAL JUDGE HAVE TO

OPERATE ON WHAT THE EVIDENCE IS?

>> YOUR HONOR, YES.

>> SEEMS TO ME THIS CASE IS ALL

ABOUT WE'RE PRETENDING THAT

THERE WAS REALLY NO REPORTS, AND

THEY JUST MADE THIS UP, AND

THERE'S OTHER EVIDENCE.

I MEAN, THIS IS, THIS, TO ME, IS

NOT HOW A SYSTEM OUGHT TO

OPERATE.

>> YOUR HONOR, THIS IS NOT ABOUT

PRETENDING AT ALL FOR THE SIMPLE

REASON THAT THE LAW COMPELS A

TRIAL COURT JUDGE TO MAKE AN

INDEPENDENT DETERMINATION.

AND THE ONLY THING THAT OUR

RECORD HERE SHOWS, YOUR HONOR,

IS THAT A LAWYER FROM THE PUBLIC

DEFENDER'S OFFICE SAID WE'VE GOT

THE REPORTS, AND THE DEFENDANT

IS COMPETENT, AND WE'RE GOING TO

PROCEED TO TRIAL.

AND THAT IS NOT WHAT THE --

>> WELL, I THINK YOU'RE PLAYING

WORD GAMES.

TO ME, IF A LAWYER WALKS IN AND

SAYS WE HAVE THE REPORTS AND

THEY SHOW THAT HE IS COMPETENT

OR INCOMPETENT, WHATEVER IT

SAYS, THAT THAT'S NOT -- I MEAN,

FOR THE PURPOSES OF THE

PROCEEDING AND THEN NEVER

ADDRESS IT AGAIN.

I AGREE YOU OUGHT TO HAVE TO

HAVE THE ORDER OR THE WRITTEN

ORDER ASK THOSE KINDS OF THINGS,

BUT I CAN'T BELIEVE THAT WE HAVE

A SYSTEM THAT A TRIAL JUDGE CAN

JUST MAKE IT UP AS HE OR SHE

GOES, DISREGARD THE THREE EXPERT

REPORTS AND COME TO A DIFFERENT

CONCLUSION AND THAT OUR LAW

SUPPORTS THAT.

I MEAN, YOU MAY HAVE DISCRETION,

BUT DISCRETION IS ABUSED IF IT'S

A VIEW THAT NO REASONABLE PERSON

WOULD TAKE.

AND HOW CAN A REASONABLE PERSON

WHO'S NOT A MENTAL HEALTH EXPERT

OVERRULE WHAT ALL OF THE EXPERTS

SAY, AND THE LAWYER FOR THE

PARTY HAS NOTHING TO OFFER?

>> TWO RESPONSES, YOUR HONOR,

AND THEN I WILL RESERVE THE REST

OF MY TIME.

NUMBER ONE, I BELIEVE THAT YOUR

HYPOTHETICAL IS THIS CASE, AND I

DON'T KNOW THAT IT ILLUSTRATES

SPECIFICALLY THE CONCERNS THAT

WE RAISE WHICH IS SIMPLY THAT IF

YOU LOOK AT TEXTUALLY, IF YOU

LOOK AT 3.12B, C AND D, THE

LANGUAGE THERE USED COMPELS THE

TRIAL JUDGE -- NOT THE LAWYER,

NOT AN OFFICER OF THE COURT, NOT

A THIRD PARTY MAKING THE

STIPULATION, BUT THE TRIAL

JUDGE -- MAKING AN INDEPENDENT

DETERMINATION SO LONG AS THE

PARTIES STIPULATE TO THE QUANTUM

OF EVIDENCE THE TRIAL COURT

JUDGE IS GOING TO CONSIDER.

I THINK THAT'S A RADICALLY

DIFFERENT --

>> I KNOW YOU'RE IN YOUR

REBUTTAL.

AND THAT'S A GREAT APPELLATE

ARGUMENT.

AND I CAN'T, AGAIN, FOR THE LIFE

OF ME SEE -- AND MAYBE THE

POSTURE IS THAT WE NEED TO SAY,

NEED TO RESOLVE THIS CONFLICT.

BUT SAY IN THIS CASE BECAUSE OF

THE POSTURE IT'S, THIS IS

SUFFICIENT.

IN OTHER WORDS, THINGS CAN BE

WAIVED.

AND SO ON DIRECT APPEAL IT

WASN'T RAISED, ON POSTCONVICTION

IT WASN'T RAISED, AND THERE IS

NO ASSERTION THAT THERE WAS

CONTINUED INCOMPETENCY.

SO WE WOULD BE -- TO GRANT A NEW

TRIAL UNDER THOSE CIRCUMSTANCES,

TO ME, WOULD BE ABSOLUTELY A

TRAVESTY OF JUSTICE UNLESS I

HEAR, THINK OF SOMETHING ELSE.

I CAN'T THINK, AGAIN, OF

ANYTHING THAT WOULD BE

EQUIVALENT TO DEFAULT, A FORM

OVER SUBSTANCE KIND OF THING IN

THIS CASE.

AND I THINK THAT'S WHERE, YOU

KNOW, AGAIN, I DON'T DISAGREE

THAT IF IT'S ON DIRECT APPEAL,

YOUR ARGUMENT IS VERY SOUND.

AND IF IT'S IN POSTCONVICTION,

THEN SOMEBODY HAS -- BUT THAT'S

WITHIN TWO YEARS.

BUT NOT TEN YEARS AFTER.

>> QUICKLY, YOUR HONOR, THE

POSTURE OF THIS CASE, HOWEVER,

THE FIFTH DISTRICT COURT OF

APPEALS' DECISION DID

SQUARELY --

>> NO, I KNOW.

AND WE'VE GOT TO RESOLVE A

CONFLICT, BUT WE DON'T HAVE TO

SANCTION THE PROCEDURAL POSTURE,

BECAUSE THAT'S OUR OBLIGATION TO

MAKE SURE THAT WE DON'T CREATE

BAD LAW IN, YOU KNOW,

UNWITTINGLY.

>> IT IS A CHALLENGE, YOUR

HONOR, YES.

THANK YOU.

>> YOU'RE OUT OF TIME.

I'LL GIVE YOU ONE MINUTE FOR

REBUTTAL.

>> THANK YOU, YOUR HONOR.

>> MAY IT PLEASE THE COURT, MY

NAME IS REBECCA McGUIGAN, AND

I'M HERE ON BEHALF OF THE STATE.

>> CAN I ASK HOW DOES THE

STATE -- BECAUSE I'M READING THE

FIFTH DISTRICT OPINION IT LOOKS

LIKE THE STATE IS ARGUING SIMPLY

WHAT IT'S ARGUING NOW.

DID THE STATE EVER ARGUE

PROCEDURAL DEFAULT, THAT YOU

CAN'T ATTACK A CONVICTION TEN

YEARS AFTER THE FACT IN THE

SCOPE OF A RESENTENCING HEARING?

>> THE STATE DID NOT ARGUE THAT,

AND WE SHOULD HAVE.

THE DEFENDANT'S ALLEGING A

PROCEDURAL VIOLATION, NOT A

SUBSTANTIVE ONE.

HE'S NOT ALLEGING THAT HE'S

ACTUALLY INCOMPETENT OR THAT HE

WAS ACTUALLY INCOMPETENT AT THE

TIME OF HIS TRIAL OR AT THE TIME

OF HIS RESENTENCING.

HE'S NOT ALLEGING A PERIOD OF

INCOMPETENCY IN BETWEEN ANY OF

THOSE.

HE SIMPLY, HIS CLAIM SHOULD BE

BARRED FOR FAILURE TO RAISE IT

ON DIRECT APPEAL OR WITHIN THE

TWO YEARS PROVIDED FOR --

>> BUT WE DO HAVE TO RESOLVE THE

CONFLICT, BECAUSE SINCE THE

STATE DID NOT BRING ANYTHING

UP --

>> RIGHT.

>> -- IT'S THERE AS A CONFLICT

BETWEEN THE FIFTH DISTRICT AND

THE FOURTH DISTRICT.

>> WELL, YOU HAVE DE NOVO

REVIEW, SO YOU CAN CERTAINLY

DECIDE THAT HE IS --

>> BUT ISN'T IT, ASSUMING IT'S

DONE IN AN APPROPRIATE FASHION,

SHOULDN'T THE JUDGE HAVE TO MAKE

HIS OR HER OWN INDEPENDENT

DETERMINATION AND SOMEWHERE AN

ORDER FINDING THE DEFENDANT

COMPETENT TO STAND TRIAL?

>> BY CITING IT FOR TRIAL, HE

SHOULD HAVE ENTERED A WRITTEN

ORDER.

THE FIFTH DCA DID THAT BY

REMANDING FOR A --

[INAUDIBLE]

ORDER WHICH HAPPENS ALL THE

TIME.

>> BUT ISN'T IT -- IT'S NOT THE

ORDER, IT'S THE FACT THAT THE

JUDGE HAS TO MAKE AN INDEPENDENT

DETERMINATION BASED ON IT.

NOW, MAYBE THIS ENDS UP BEING

THE SAME THING WHICH IS THERE'S

A STIPULATION.

ALL THREE JUDGES -- ALL THREE

EXPERTS HAVE SAID HE'S

COMPETENT.

I'VE OBSERVED HIM, AND I SEE

NOTHING THAT WOULD, WOULD

CHALLENGE THAT STIPULATION.

SO IT'S SORT OF THERE SHOULD

BE -- AGAIN, THINKING OF IT IN

THE COURSE OF WHAT WE WANT TO

MAKE SURE HAPPENS IN THE

FUTURE -- NOT ONLY IS THAT THE

BETTER THING, BUT THAT IS REALLY

WHAT THE RULE REQUIRES.

>> WELL, AND AGAIN, THIS CASE

IS -- FACTUALLY, OUR POSITION

HAS ALWAYS BEEN THAT THIS CASE

IS FACTUALLY DISTINGUISHABLE

FROM MACALUSO.

IN MACALUSO THE DEFENSE COUNSEL

RECEIVED THEIR OWN REPORTS AND

REQUESTED THE HEARING AND CAME

IN, AND THEN THE COURT JUST

SAID, OKAY, I'M GOING TO FIND

HIM COMPETENT.

THERE'S NO CASE THAT THE PARTIES

AGREED TO THAT.

IN THIS CASE EVERYBODY HAD THE

REPORT.

THEY WERE REQUIRED TO BE

PROVIDED TO EVERYONE.

SO EVERYBODY'S SEEN THE REPORTS,

AND IN THE MARTINEZ CASE THEY

SAID THAT WE DON'T PRESUME TRIAL

COURT DIDN'T TO HIS JOB.

SO WE --

>> BUT IN MACALUSO WHAT THE

OPINION SAYS IS THAT THE

DEFENDANT'S ATTORNEY ADVISED THE

COURT THAT HE HAD SINCE BEEN

FOUND COMPETENT BASED ON

EVALUATIONS THAT WERE OBTAINED

BY THE PUBLIC DEFENDER'S OFFICE.

THAT SOUNDS PRETTY CLOSE TO

STIPULATION THAT HE'S COMPETENT

TO ME IF THE ATTORNEY'S BEEN

SAYING HE'S FOUND COMPETENT AND

IS SAYING NOTHING ELSE.

THAT SEEMS, TO ME, TO BE PRETTY

CLOSE TO WHAT WE HAVE HERE.

>> BUT AGAIN, IN THAT INSTANCE

WE DON'T KNOW THAT ALL THE

PARTIES HAD A COPY OF THE

REPORTS.

WE DON'T KNOW THAT THE STATE HAD

THE OPPORTUNITY TO DISPUTE WHAT

THEIR EXPERT FOUND.

WE DON'T KNOW THAT THE TRIAL

COURT EVER SAW THE REPORTS IN

THAT CASE.

WHEREAS HERE BOTH TIMES HE CAME

BEFORE THE COURT --



Xxx



WE DON'T KNOW THE THEY HAD ALL

COPIES OF THE REPORTS.

THEY DON'T KNOW THEY HAD A

OPPORTUNITY TO DISPUTE WHAT

THEIR EXPERT FOUND.

WE DON'T KNOW THE TRIAL COURT

EVER SAW REPORTS IN THAT CASE.

WHEREAS HERE BOTH TIMES HE CAME

BEFORE THE COURT WHEN IT WAS THE

COMPETENCY REVIEW FROM THE

HOSPITAL AND THEY RETURNED HIM,

THE RULE REQUIRES THEM TO

PROVIDE REPORTS TO EVERYONE.

WHEN HE, WHEN, AFTER THAT

HEARING, FOUR MONTHS LATER WHEN

HIS COUNSEL BECAME CONCERNED

AGAIN, THAT HE MAY HAVE LAPSED

BACK INTO INCOMPETENCY AND FILED

A WRITTEN REPORT SAYING I THINK

WE NEED TO EVALUATE HIM FOR

COMPETENCY BECAUSE I HAVE

CONCERNS THE TRIAL COURT IN HER

ORDER REQUIRED ALL THE REPORTS

BE PROVIDED TO EVERYBODY A WEEK

BEFORE THE HEARING.

EVERYBODY HAD THE REPORTS.

ALL THREE REPORTS FOUND HIM

COMPETENT AND CAME IN AND

ALL THE REPORTS FIND HIM

COMPETENT.

WE STIPULATE.

>> THOSE REPORTS ARE NOT IN OUR

RECORD.

>> THEY ARE NOT IN OUR RECORD.

THEY DO SO EXIST.

>> HOW DO WE KNOW THEY EXIST?

IS THAT IN THE RECORD?

>> AT THE RESENTENCING HEARING

THE STATE REFERENCES THEM AND

TALKS ABOUT WHAT THEY HAD.

THAT THEY ALL FOUND.

>> IN THE RECORD OF THE ORIGINAL

PROCEEDING?

>> THEY'RE NOT ON THE TRIAL

COURT DOCKET SHEET.

>> HERE IS MY, HERE IS MY

CONCERN.

HAVING A SERIOUS PROBLEM WITH

THIS.

YOU KNOW WE HAVE A RULE THAT

BASICALLY SAYS, ONCE A PERSON IS

DETERMINED TO BE INCOMPETENT,

THAT PERSON IS PRESUMED TO BE

INCOMPETENT UNTIL THE COURT FINDS

OTHERWISE.

WITH REGARD TO HEARING,

EVIDENTIARY HEARING, TO MAKE

THAT DETERMINATION.

TO BE SURE LAWYERS COME IN

AND STIPULATE THERE ARE THREE

REPORTS.

THEY ARE TO FIND EACH JUDGE AND

HE IS FOUND TO BE COMPETENT AND

WE STIPULATE TO THE FINDINGS IN

THOSE REPORTS AND BASED ON THOSE

REPORTS, JUDGES CAN MAKE A

DETERMINATION WITHOUT A

FULL-BLOWN HEARING AND DOCTORS

TESTIFYING IN AND COME TAKE UP A

WHOLE DAY DOING THAT I

UNDERSTAND THAT.

THERE IS PROCESS AND PROCEDURE

FOR DOING THAT.

THIS WHOLE BUSINESS OF A PERSON

UNDERSTANDING THE CHARGES,

ASSISTING COUNSEL AND THAT'S A

VERY IMPORTANT, THAT'S A CRUCIAL

FEATURE OF OUR JURISPRUDENCE.

WE SPENDS THOUSANDS OF DOLLARS

IN INTERPRETERS TO MAKE SURE

THAT PEOPLE COME IN AND

UNDERSTAND WHAT'S GOING ON.

THIS IS A CRUCIAL ISSUE AND IT

JUST SEEMS TO ME, LIKE IN THIS

PARTICULAR ISSUE, THEY'RE COMING

IN, AND LAWYERS SAYS, YOU KNOW,

JUDGE, HE'S COMPETENT.

LET'S GO TO TRIAL AND THE JUDGE

SAYS, OKAY.

I HAVE A PROBLEM WITH THAT

PROCESS.

WE HAVE A RULE THAT REQUIRES

CERTAIN THINGS.

I UNDERSTAND ARGUMENTS BEING

PROCEDURAL AND PRESERVE THESE

THINGS.

STATE ATTORNEY SHOULD MAKE

THE POINT, JUDGE, BEFORE WE GO

THERE, WE NEED TO DO THESE

THINGS AND SOMETHING SHOULD HAVE

BEEN DONE.

THAT IS PROBLEM I'M HAVING WITH

THIS IS ONE OF MOST

IMPORTANT PROCEDURES IN OUR

CRIMINAL JURISPRUDENCE AND

A PERSON CHARGED WITH A CRIME 

AND BEING

TRIED UNDERSTANDS WHAT IS GOING

ON AND I, I'M CONCERNED ABOUT

THE WAY THIS WAS DONE.

AND WE'LL SEE WHERE WE GO FROM

THERE.

>> UNLESS THIS COURT HAS ANY

FURTHER QUESTIONS, THEN WE WOULD

ASK THAT YOU FIND JURISDICTION

AND PROVIDENTLY GRANTED BECAUSE

WE DON'T THINK THERE WAS

CONFLICT OR TO FIND THIS CASE

WAS PROCEDURALLY BARRED AS HE

RAISED ALMOST 10 YEARS BEFORE

RAISING THIS ISSUE THANK YOU.

>> THANK YOU FOR YOUR ARGUMENTS.

REBUTTAL.

>> I HAVE NOTHING FURTHER AT

THIS TIME.

>> THANK YOU.