FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ 

No. 1D16-2327 

_____________________________ 

ROGER N. ROSIER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________ 

On appeal from the Circuit Court for Wakulla County. 

Dawn Caloca-Johnson, Judge. 

June 28, 2019

ON MOTION FOR REHEARING, REHEARING EN BANC, AND 

CLARIFICATION

ROWE, J. 

Roger N. Rosier’s judgment and sentence were reversed by a 

panel of this Court on grounds that the competency hearing 

conducted by the trial court was legally inadequate. See Rosier v. 

State, 43 Fla. L. Weekly D2042 (Fla. 1st DCA Sept. 5, 2018). The 
2

State moved for rehearing, rehearing en banc, and clarification,

asserting that the Court sua sponte decided an issue not argued by 

Rosier. We grant the motion, withdraw the panel opinion, and 

substitute the following in its place. 

I. 

Rosier appeals his conviction and sentence for resisting an 

officer with violence. He argues that the trial court erred by: (1) 

imposing a discretionary fine and surcharge without orally 

pronouncing them, and (2) failing to conduct a competency 

hearing. 

We agree that the trial court erred when it imposed the 

discretionary fine and surcharge under section 775.083, Florida 

Statutes, without orally pronouncing them at sentencing. Thus, 

the fine and surcharge must be stricken. We affirm Rosier’s 

judgment and sentence in all other respects. 

Rosier made only one argument related to competency in his 

initial brief—that the trial court erred as a matter of law by failing 

to conduct a competency hearing. Rosier’s specific argument was: 

Mr. Rosier was committed to the Florida State Hospital 

after the trial court found that he was incompetent to 

proceed on October 7, 2013. After receiving a report 

recommending a finding of competency, the trial court 

scheduled the hearing required by Florida Rule of 

Criminal Procedure 3.212(c) for July 9, 2014; however,

the required hearing never occurred. Subsequently, on 

August 14, 2014, a different circuit court judge entered 

an order finding that Mr. Rosier was competent. The 

controlling rules and case law cited above provide that a 

competency hearing is required in this context. The trial 

court erred as a matter of law by adjudging Mr. Rosier—

who had previously been adjudged incompetent—

competent without first holding a hearing. 

Weeks after the initial brief was filed, the State sought and 

was granted leave to supplement the record with the transcript of 

the competency hearing conducted on August 14, 2014. After being 
3

served with a transcript contradicting his claim that no 

competency hearing occurred, Rosier did not seek to amend the 

initial brief to clarify or supplement his arguments on appeal. 

The State then filed an answer brief, arguing that the 

transcript of the competency hearing, the expert’s report, and the 

trial court’s order refuted Rosier’s argument that the trial court 

failed to conduct a competency hearing. The State contended that 

the record showed,

the trial court made an independent determination that 

Rosier was competent and fully complied with the 

requirements expressed in Dougherty v. State, 149 So. 3d 

672 (Fla. 2014), and Merriell v. State, 169 So. 3d 1287 

(Fla. 1st DCA 2015)[,] by holding a hearing, making an 

independent determination that Appellant was 

competent to proceed, and entering a written order. 

Rosier did not respond to the State’s arguments. Rather than file 

a reply brief, he filed a “Notice that Appellant Will Not File a Reply

Brief.”

After briefing, this Court delivered an opinion reversing 

Rosier’s judgment and sentence. The panel majority cast Rosier’s 

argument on appeal as one “challeng[ing] the adequacy of the 

hearing at which it was determined that his competency had been 

restored.” Rosier, 43 Fla. L. Weekly at D2042. Holding that the 

competency hearing was inadequate, the majority reversed and 

remanded for the trial court to make a nunc pro tunc evaluation of 

Rosier’s competency. 

II. 

On rehearing, the State points out that the only argument 

presented in Rosier’s initial brief was that the trial court entered 

an order finding Rosier competent to proceed without conducting 

a competency hearing. The State argues that Rosier did not 

challenge the adequacy of the hearing. Thus, the issue was 

waived, and the panel majority erred by sua sponte raising and 

deciding the issue. In his response to the rehearing motion, Rosier 

acknowledged that he failed to raise the adequacy of the hearing 
4

in the initial brief but argued that the issue was properly before 

the Court because the State raised it in the answer brief, and 

Rosier’s initial-brief argument—that the trial court failed to hold 

a competency hearing—necessarily included an argument that the 

hearing was inadequate. We disagree and hold that Rosier waived 

any argument on the adequacy of the competency hearing when he 

failed to raise the issue in the initial brief. 

An appellate court is “not at liberty to address issues that 

were not raised by the parties.” Anheuser-Busch Co., Inc. v. 

Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013). Nor may an 

appellate court “depart from its dispassionate role and become an 

advocate by second guessing counsel and advancing for him 

theories and defenses which counsel either intentionally or 

unintentionally has chosen not to mention.” Polyglycoat Corp. v. 

Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) (on 

motion for rehearing); see also D.H. v. Adept Cmty. Servs., Inc., 43 

Fla. L. Weekly S533, S539 (Fla. Nov. 1, 2018) (Canady, C.J., 

dissenting) (“[I]t is not the role of the appellate court to act as 

standby counsel for the parties.”). Instead, an appellate court 

must confine its decision to the issues raised in the briefs. See

Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1126 

(Fla. 2014) (“Basic principles of due process”—to say nothing of 

professionalism and a long appellate tradition—“suggest that 

courts should not consider issues raised for the first time at oral 

argument” and “ought not consider arguments outside the scope of 

the briefing process.”) (quoting Powell v. State, 120 So. 3d 577, 591 

(Fla. 1st DCA 2013))); Redditt v. State, 84 So. 2d 317, 320 (1955) 

(“The function of an assignment of error is to point [to] the specific 

error claimed to have been committed by the court below, in order 

that the reviewing court and opposing counsel may see on what 

point the appellant seeks reversal and to limit argument and 

review to such point.”); T.M.H. v. D.M.T., 79 So. 3d 787, 827 (Fla. 

5th DCA 2011) (Lawson, J., dissenting) (“Judicial restraint serves 

as the essential self-imposed ‘check’ against the judicial branch’s 

abuse of power. . . .”). For an appellant to raise an issue properly 

on appeal, he must raise it in the initial brief. Otherwise, issues 
5

not raised in the initial brief are considered waived or abandoned.1 

See Hall v. State, 823 So. 2d 757, 763 (Fla. 2002) (finding 

procedurally barred argument made in appellant’s reply brief that 

was not raised in the initial brief), abrogated on other grounds by

Norvil v. State, 191 So. 3d 406 (Fla. 2016); City of Miami v. 

Steckloff, 111 So. 2d 446, 447 (Fla. 1959) (“An assigned error will 

be deemed to have been abandoned when it is completely omitted 

from the briefs.”); J.A.B. Enter. v. Gibbons, 596 So. 2d 1247, 1250 

(Fla. 4th DCA 1992) (“[A]n issue not raised in an initial brief is 

deemed abandoned and may not be raised for the first time in a 

reply brief.”); Philip J. Padovano, Waiver, 2 Fla. Prac., App. 

Practice § 8:10 (2017 ed.) (“Failure to pursue the argument on 

appeal or review is a waiver of the point.”). 

These fundamental principles of appellate review and judicial 

restraint apply even when the defendant has been convicted of a 

capital crime and sentenced to death. See Hoskins v. State, 75 So. 

3d 250, 257 (Fla. 2011) (declining to address a claim of ineffective 

assistance of counsel because appellant raised the claim for the 

first time in the reply brief); Simmons v. State, 934 So. 2d 1100, 

1117 n.14 (Fla. 2006) (declining to reach on direct appeal “any 

arguments not expressly included in Simmons’ brief to this 

Court”); Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla. 1997) (finding 

waived on direct appeal a claim of improper admission of the 

defendant’s statements made during a taped interview because the 

 

1 The dissenting judges argue that the scope of appellate 

review is not so limited, citing language in D.H., and other 

decisions that indicate that, even if not raised on appeal, a 

reviewing court may review the record for “obvious fundamental 

error” or jurisdictional defects. But see Kirkman v. State, 233 So. 

3d 456, 465 (Fla. 2018) (declining to consider argument where 

appellant failed to preserve the argument in the trial court and 

presented “no argument for fundamental error on 

appeal”). Because there is no jurisdictional defect or fundamental 

error in this case, we need not address the purely academic 

question raised by the dissents, i.e., whether an appellate court 

must act as standby appellate counsel and scour the record in each 

case for fundamental error. 
6

defendant failed to brief fully and argue the issue); Johnson v.

State, 660 So. 2d 637, 645 (Fla. 1995) (reiterating on direct appeal 

that “[t]he law is well settled that failure to raise an available issue 

constitutes an admission that no error occurred”); Duest v. Dugger, 

555 So. 2d 849, 851-52 (Fla. 1990) (finding waived in a 

postconviction appeal any claims not fully argued in the 

appellant’s initial brief). 

 

Applying these principles here, we find Rosier waived any 

argument that the competency hearing was inadequate. Williams 

v. State, 932 So. 2d 1233, 1237 (Fla. 1st DCA 2006) (defining 

waiver as the “voluntary and intentional relinquishment of a 

known right or conduct which implies the voluntary and 

intentional relinquishment of a known right”). In his initial brief, 

Rosier argued only that the trial court failed to hold a competency 

hearing. Now on rehearing, he argues, for the first time, that the 

hearing was inadequate. Because Rosier did not challenge the 

adequacy of the competency hearing in his initial brief, he may not 

raise it now on rehearing. Coolen, 696 So. 2d at 742 n.2; AnheuserBusch, 125 So. 3d at 312. 

 

Rosier offers two reasons why his failure to brief the adequacy 

of the hearing does not bar this Court from reviewing the issue. 

First, he asserts that the issue was properly before the Court 

because the State implicitly raised the issue in the answer brief by 

arguing that the trial court made an independent determination of 

Rosier’s competency. Second, Rosier argues that “[a] finding of 

competency following an inadequate hearing is essentially the 

same error as a finding of competency following no hearing at all.” 

We reject both arguments. First, the State’s arguments in the 

answer brief assigned no new error for this Court to review. Even 

after Rosier received the supplemental record refuting his only 

argument on competency, Rosier did not seek leave to file an 

amended brief. See In re J.W., 210 So. 3d 147, 152 (Fla. 2d DCA 

2016) (holding that appellant waived issue not argued in her initial 

brief after she was put on notice of the issue in the answer brief 

and “did not move for leave to file an amended brief to address the 

point”); Bilotti v. State, 27 So. 3d 798, 800 (Fla. 2d DCA 2010) 

(holding that appellant waived issue because he did not raise it in 
7

the initial brief, seek leave to file a supplemental brief, or reply to 

the State’s answer brief). 

Second, Rosier’s initial argument challenging the trial court’s 

failure to hold a competency hearing was insufficient to preserve 

his argument on rehearing challenging the adequacy of the 

hearing. I.R.C. v. State, 968 So. 2d 583, 588 (Fla. 2d DCA 2007) 

(recognizing that an appellate court may “ordinarily reverse only 

on the basis of the specific arguments presented by the appellant”). 

Even when confronted with the transcript of the hearing, Rosier 

did not file a reply brief to respond to the arguments in the answer 

brief and to clarify the argument made in his initial brief. We 

decline the invitation to expand Rosier’s lack-of-hearing argument 

to incorporate his newly articulated inadequate-hearing 

argument. See Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 

3d 269, 278 (Fla. 1st DCA 2012) (explaining that Florida Rule of 

Appellate Procedure 9.330(a) expressly prohibits consideration of 

issues raised for the first time in a motion for rehearing). 

III. 

We thus confine our review to the argument Rosier raised in 

the initial brief—whether the trial court failed to conduct a 

competency hearing. Had there been such a failure here, 

precedent from this Court would indeed support reversal. See 

Pearce v. State, 250 So. 3d 791, 792-93 (Fla. 1st DCA 2018); 

Robinson v. State, 250 So. 3d 777, 778-79 (Fla. 1st DCA 2018); 

Francis v. State, 248 So. 3d 263, 264-65 (Fla. 1st DCA 2018). But 

reversal is not required here because the record clearly shows that 

the trial court did conduct a hearing on Rosier’s competency. 

Rosier was committed to the Florida State Hospital after the 

trial court determined that he was incompetent to proceed on 

October 7, 2013. On June 27, 2014, the trial court received a copy 

of the confidential evaluation report from the experts at Florida 

State Hospital. The report found Rosier competent to proceed. The 

report also included discharge instructions suggesting that jail 

officials continue Rosier’s medication regime while Rosier awaited

trial. The case progress docket then reflects that a review hearing 

was scheduled for August 13, 2014, with Judge Caloca-Johnson 

presiding. 
8

At the review hearing, defense counsel alerted the court that 

Rosier was returning from Florida State Hospital and that a 

competency hearing should be scheduled. Defense counsel asked 

that the hearing occur before the case was set for trial. When the 

prosecutor suggested resolving the issue that day, defense counsel 

stated that Rosier was not present and asked for the competency 

hearing to be set for the next day, August 14, 2014. The following 

discussion occurred:

THE COURT: Yeah. So we’ve moved to[o] much around, 

in the last twenty-four hours.

THE CLERK: How long is it going to take?

THE COURT: How long is it going to take, two seconds?

MS. JOHNSON: Judge, it won’t - - it won’t take more 

than - - more than thirty seconds.

THE COURT: Okay.

MS. JOHNSON: We’re stipulating that he’s competent.

The record reflects that the court reconvened the next day for a 

competency hearing.

At that hearing, defense counsel and Rosier stipulated to the 

expert report’s findings that Rosier was competent to proceed. The 

trial court then conducted a colloquy of Rosier, during which the 

court learned that Rosier believed that he was doing “a lot better,” 

that he was not taking any psychotropic medications, and that he 

believed he was okay. The trial court’s written order, entered on 

the same day as the hearing, provided: 

THIS CAUSE having come before the Court on the report 

of Leslie Dellenbarger, Psy.D. Senior Psychologist, 

Florida State Hospital of June 19, 2014, that the 

Defendant is competent to proceed, and the Court being 

fully advised in the premises, it is hereby 

 ORDERED AND ADJUDGED: 
9

1. The Defendant is currently competent to proceed to 

trial. 

These facts refute Rosier’s argument that the trial court failed 

to hold a hearing before entering the order finding him competent 

to proceed. See Merriell, 169 So. 3d at 1288 (affirming a finding of 

competency made during a status hearing when the court 

specifically stated that it had read the competency evaluations and 

that it found the appellant competent to proceed). Because the 

record shows that the trial court conducted a hearing to determine 

competence, Rosier’s sole argument on appeal fails. Apart from 

our reversal of his sentence to address the imposition of the fine 

and surcharge, Rosier’s judgment and sentence is AFFIRMED in 

part, REVERSED in part, and REMANDED for further proceedings. 

B.L. THOMAS, C.J., and LEWIS, ROBERTS, WETHERELL, RAY, 

OSTERHAUS, KELSEY, WINOKUR, JAY, and M.K. THOMAS, JJ., 

concur.

WOLF, J., concurs in result with opinion.

WINOKUR, J., concurs in an opinion joined by B.L. THOMAS, C.J.

M.K. THOMAS, J., concurs in an opinion joined by B.L. THOMAS, 

C.J., and KELSEY and JAY, JJ.

MAKAR, J., dissents in an opinion joined by BILBREY, J.

BILBREY, J., dissents in an opinion joined by MAKAR, J.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

WOLF, J., concurring in result.

I concur in affirming the trial court’s determination regarding 

competency. Any alleged error in this case was not sufficiently 
10

egregious to warrant this court reversing on an issue not raised 

within appellant’s brief.

If an error in this case, however, had been discovered by this 

court during its normal review process that affected the 

fundamental fairness of the criminal proceeding, we would be 

required to order supplemental briefing and address the error.2

Not addressing an error that goes to the very fairness of a criminal 

proceeding is simply not an option. I fully agree with the thoughts 

expressed by Judge Cohen in his well-reasoned concurrence in 

Berben v. State, 44 Fla. L. Weekly D962, 963 (Fla. 5th DCA Apr. 

12, 2019), where he stated:

While the dissent correctly asserts that we have no duty 

to undertake a fundamental error analysis, we do, 

however, have a duty to ensure that justice is applied 

fairly and evenly. E.g., Smith v. State, 521 So. 2d 106, 108 

(Fla. 1988) (explaining that fundamental error should 

apply “where the interests of justice present a compelling 

demand for its application” (citing Ray v. State, 403 So. 

2d 956 (Fla. 1981)). It is also a well-established practice 

of this Court to remedy fundamental errors on the face of 

the record. E.g., Honaker v. State, 199 So. 3d 1068, 1070 

(Fla. 5th DCA 2016); Johnson v. State, 574 So. 2d 222, 

224 (Fla. 5th DCA 1991); Goss v. State, 398 So. 2d 998, 

999 (Fla. 5th DCA 1981). I agree that a finding of 

reversible error that was neither preserved at the trial 

level nor argued on appeal should be a rare circumstance; 

this is that rare case. We cannot simply ignore the 

fundamental sentencing error under the guise of “judicial 

restraint.”

(Footnote omitted).

 

2 Where a defendant files an Anders brief, we are required to 

look for fundamental error by thoroughly examining the record 

and addressing issues not raised. See Anders v. California, 386 

U.S. 738 (1967). In this case there is no such requirement, but we 

should not ignore egregious fundamental errors that are found in 

our normal review process.
11

The same can be said of non-sentencing errors that go to the 

very fairness of a criminal proceeding. 

The majority acknowledges that because it finds no error, it is 

unnecessary to address whether an appellate court can decide an 

issue that affects the fundamental fairness of a criminal 

proceeding if it is unbriefed. I write specifically to point out that 

the holding of this case does not address that issue and to voice the 

view that a bright-line rule that prohibits us from ever addressing 

discovered fundamental unfairness is inconsistent with our system 

of justice. 

WINOKUR, J., concurring.

The majority opinion acknowledges the rule that “an appellate 

court may consider an issue that has been waived or abandoned 

when the issue involves ‘obvious fundamental errors’ or the court’s 

jurisdiction.” Maj. op. at 5 n.1 (citing D.H. v. Adept Cmty. Servs., 

Inc., 43 Fla. L. Weekly S533, S535 (Fla. Nov. 1, 2018)). However, 

the majority opinion avoids application of this rule by asserting 

that “the trial court [here] committed no fundamental error.” Maj. 

op. at 5 n.1.

I do not dispute this conclusion. As such, we should not 

address the unraised issue, and the issue raised does not support 

reversal. This should end the inquiry, but other opinions in this 

case specifically address whether we have a duty to correct 

fundamental error that the appellant did not raise. On this matter, 

I believe a few additional points are worth mentioning.

1. Chief Justice Canady’s D.H. dissent

First, I agree with Chief Justice Canady’s position on unraised 

error, expressed in dissent in D.H.:

Our precedent requires that an argument for 

reversal be specifically preserved in the trial court and 

then be specifically raised and briefed to the appellate 

court in order for that appellate court or a higher 

appellate court to consider it. Otherwise, the argument is 
12

waived. General or vague references to an issue will not 

suffice. . . . 

This requirement of specific argument and briefing 

is one of the most important concepts of the appellate 

process. Indeed, it is not the role of the appellate court to 

act as standby counsel for the parties.[3] Moreover, it is 

only logical to require an argument to specifically be 

raised. Otherwise, the appellee “must not only respond to 

the specific reasons for reversal advanced by the 

[appellant] but also anticipate and respond to other 

reasons for reversal that may be advanced by the 

reviewing court.” In the end, absent some exception to the 

waiver doctrine, an appellant who abandons an argument 

cannot benefit from that argument in the future. 

D.H., 43 Fla. L. Weekly at S539 (Canady, C.J., dissenting) 

(citations and footnote omitted). Exceptions to this elementary rule 

of appellate law should be rarely made.

2. Nature of fundamental error

Second, I emphasize a basic feature of fundamental error: the 

whole point of identifying an error as “fundamental” is to permit 

an appellant to argue that the error supports reversal even if the 

 

3 The importance of a court’s duty to remain neutral and to 

refrain from making arguments for one side of a proceeding was 

discussed at length in the dissenting opinion of Lee v. State, 264 

So. 3d 225, 231 (Fla. 1st DCA 2018) (Makar, J., dissenting). In Lee,

the appellant argued that the trial judge improperly departed from 

his neutral position by taking actions that assisted the 

prosecution. No doubt the trial judge in Lee believed that the 

prosecution’s perceived failures were causing impropriety in the 

proceedings, and that his disputed actions were necessary to 

promote justice. Yet the dissenting opinion forcefully contended 

that the trial judge’s actions improperly assisted one side and 

constituted an abandonment of neutrality. I believe that assisting 

the appellant here by reversing the conviction on an issue he did 

not assert himself would have the same effect.
13

issue was never raised or properly preserved below. See, e.g., Insko 

v. State, 969 So. 2d 992, 1001 (Fla. 2007) (noting that “to obtain 

appellate review of a claimed error . . ., a party must have 

preserved the error by timely objection,” “unless fundamental 

error occurred”); F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) 

(noting that only fundamental error “may be raised for the first 

time on appeal”); Judge v. State, 596 So. 2d 73, 79 n.3 (Fla. 2d DCA 

1991) (holding, “[i]n its narrowest functional definition, 

‘fundamental error’ describes an error that can be remedied on 

direct appeal, even though the appellant made no 

contemporaneous objection in the trial court . . .”). See also

§ 924.051(3), Fla. Stat. (“An appeal may not be taken from a 

judgment or order of a trial court unless a prejudicial error is 

alleged and is properly preserved or, if not properly preserved, 

would constitute fundamental error.”).4

But if we permit the reversal of a judgment based on unraised 

fundamental error, not only do we permit an appellant to raise an 

unpreserved error if it is fundamental, but we hold that the 

appellant does not even have to raise the issue, because the 

appellate court has an independent duty to reverse, even if the 

issue is unraised. I believe this rule radically and unnecessarily 

alters the very definition of fundamental error. “Fundamental 

error” would no longer mean “error so serious that a litigant can 

raise it on appeal even if unpreserved;” instead, it would mean 

“error so serious that an appellant does not even have to raise it 

on appeal and the court bears an obligation to discover and correct 

the error sua sponte.” I see no compelling reason to transform the 

longstanding, well-accepted definition of fundamental error.

 

4 To be clear, in no way do I suggest that “the lack of 

preservation precludes appellate review under a fundamental 

error exception,” as Judge Makar contends. (Makar, J., dissenting 

at 37). Nor do I ignore section 924.051(3), which I cite above. If it 

needs to be said, of course we must reverse a conviction if a 

criminal defendant properly argues on appeal that fundamental 

error occurred, even if the issue was not preserved below. The issue 

I address here is an appellate court’s obligation to address sua 

sponte a fundamental error that the appellant never raised. No 

Florida statute requires an appellate court to do so.
14

3. “Obvious” or “egregious” fundamental error

To repeat, I agree with Chief Justice Canady that an 

argument for reversal must “be specifically raised and briefed to 

the appellate court in order for that appellate court . . . to consider 

it,” and that “[t]his requirement of specific argument and briefing 

is one of the most important concepts of the appellate process.” 

This foundational rule of appellate law does not contain a 

“fundamental error” exception. 5 But the D.H. majority opinion

allows a court to reverse a judgment on an unraised issue if it 

constitutes “obvious fundamental error.” In concurrence here, 

Judge Wolf advocates for a similar rule, finding that we should 

reverse a judgment based on “egregious fundamental errors” even 

if the appellant does not raise them. (Wolf, J., concurring at 10).

Does adding “obvious” or “egregious” to the phrase 

“fundamental error” narrow the range of errors that can support 

reversal if the error is unraised? If so, one obvious benefit would 

be to require a higher degree than “mere” fundamental error: while 

an appellant cannot raise an unpreserved issue unless it 

constitutes fundamental error, a court cannot raise the issue sua 

sponte unless it is “obvious” or “egregious” fundamental error. But 

an obvious drawback of such a rule is definitional. If an error is 

defined as fundamental when it goes “to the foundation of the case 

or . . . to the merits of the cause of action[,]” Sanford v. Rubin, 237 

So. 2d 134, 137 (Fla. 1970), it is “egregious” by its nature. In other 

words, a truly fundamental error is an egregious error. As such, I 

am not certain it is helpful to decide that fundamental error can 

be addressed sua sponte if it is “egregious.” 

 

5 It should go without saying that this rule of law applies only 

to arguments to reverse a trial court’s ruling. It is just as much a 

fundamental rule of appellate law that the court may affirm (in 

fact must affirm) a ruling on any argument supported by the 

record, even if not raised by the appellee. See Dade Cty. Sch. Bd. 

v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999); State v. 

Pitts, 936 So. 2d 1111, 1133 (Fla. 2d DCA 2006) (explaining that 

appellate courts should affirm “even if the specific basis for 

affirmance has not been articulated by the appellee”).
15

But what does it mean that a fundamental error is “obvious?” 

The limits of this principle are illustrated by Berben v. State, 268 

So. 3d 235 (Fla. 5th DCA 2019), cited with approval by Judge Wolf. 

In that case, the panel discerned an error in the sentencing hearing 

that it described as fundamental. The court reversed the sentence, 

based on this perceived error that the court discovered itself. And 

yet, the decision produced a dissenting opinion, in which the 

dissenting judge found no error at all. Id. at 239-40 (Grosshans, J., 

dissenting). This leads to the question, how can an error be an 

obvious fundamental error, if one-third of the panel considering 

the question found that no error even occurred?6

I believe the same reasoning applies here. If honest and 

reasonable judges disagree on whether a matter even constitutes 

error at all, then the alleged error cannot be obvious enough to 

invoke a rule that a court may correct such errors even if unraised. 

In the context raised here, I believe a showing that the trial court 

tried a manifestly incompetent defendant might invoke such a 

rule. In contrast, a showing that the trial court did not properly 

comply with Rule 3.212 regarding proper findings of competency, 

which could possibly, but not necessarily, lead to an 

unconstitutional result, does not.7

 

6 To demonstrate this point further, I cannot help but to 

observe that I agree with Judge Grosshans that the sentencing 

judge’s comment in Berben was not inappropriate. While there 

could be fair debate on this issue, it seems doubtful that the error 

was so fundamental to the fairness of the proceeding that it 

demanded the appellate court to sua sponte unearth this alleged 

error, depart from its neutral role, and reverse the conviction on a 

ground unraised by the appellant.

7 Such a rule would be consistent with the definition of 

fundamental error (called “plain error”) used by the Georgia 

courts. Such error permits reversal of a conviction if the error was 

“obvious,” if it “likely affected the outcome of the proceedings,” and 

if it “seriously affected the fairness, integrity or public reputation 

of judicial proceedings.” Smith v. State, 737 S.E.2d 677, 681 (Ga. 

2013). While this arguably ought to be the standard for 

fundamental error in this state, our state has permitted appellants 

to raise fundamental error in some contexts as long the error 
16

4. “Unrenunciable judicial duty”

The dissenting opinions note that this court has ruled that it 

has an “unrenunciable judicial duty” to correct fundamental error, 

even if unraised by the appellant. I believe this phrase should be 

placed in context.

The first opinion to use the phrase “unrenunciable judicial 

duty” was Bain v. State, 730 So. 2d 296, 302 (Fla. 2d DCA 1999)

(“As such, the correction of fundamental error is not merely a 

judicial power; it is an unrenunciable judicial duty.”). But Bain had 

nothing to do with errors the appellant did not raise on appeal. 

Bain had argued on appeal that “the minimum mandatory aspect 

of the robbery sentence exceeds that permitted by the habitual 

violent felony offender statute.” Id. at 297. The Bain court had to 

consider whether it could address this sentencing error even 

though it was unpreserved, concluding that it could because 

correction of a fundamental error was an “unrenunciable judicial 

duty.” Id. at 302. The phrase was just a grandiloquent way of 

saying that an appellant asserting fundamental error is entitled to 

reversal, even if the error is unpreserved. This is hardly a novel 

rule of law.

The phrase was unused for nine and one-half years until this 

Court picked it up in Bishop v. State, 21 So. 3d 830 (Fla. 1st DCA

 

somehow affects a constitutional right. Dougherty v. State, 149 So. 

3d 672 (Fla. 2014), provides an example. Because the procedures 

in Rules 3.210 and 3.212 “protect a defendant’s right not to be tried 

or convicted while incompetent to stand trial,” id. at 679, failure to 

comply with those procedures constitutes fundamental error. See

Zern v. State, 191 So. 3d 962, 965 (Fla. 1st DCA 2016) (applying 

Dougherty). In other words, cases like Dougherty do not require 

that it is “likely” that the error constituted a deprivation of 

constitutional rights, only that procedures designed to protect 

those rights were not followed. I submit that an “obvious” 

fundamental error should be consistent with the Georgia definition 

of plain error. The record ought to demonstrate that it is “likely” 

that a constitutional right (here, the right not to stand trial while 

incompetent) was violated, not that it was merely possible this 

right was violated because proper procedures were not followed.
17

2008). Only this time, the phrase was used not simply as 

shorthand for “the court can reverse even if the issue asserted is 

unpreserved, if the issue constitutes fundamental error.” Instead, 

Bishop ruled explicitly that the court should reverse on an issue 

the appellant never asserted: “Although Appellant did not raise 

this issue as a basis for reversal, we must carry out our 

‘unrenunciable judicial duty’ to correct fundamental error and 

review this issue.” Id. at 832 (citing Bain, 730 So. 2d at 302). In 

fact, Bain did not address unraised issues and ruled nothing of the 

sort.

In spite of the fact that Bishop applied the “unrenunciable 

judicial duty” language from Bain to an entirely new context, a few 

cases have cited the language from Bishop as support for the

proposition that an appellate court must correct fundamental error 

sua sponte, even if the appellant does not raise it. See Hendricks v. 

State, 34 So. 3d 819, 828 (Fla. 1st DCA 2010); Adams v. State, 122 

So. 3d 976, 979 (Fla. 2d DCA 2013); Phelps v. State, 236 So. 3d 

1162, 1164 (Fla. 2d DCA 2018); Berben, 268 So. 3d at 238.8

Until Bishop came along and created a rule of law by 

misapplying Bain, no appellate court had ever ruled that it had an 

“unrenunciable judicial duty” to sua sponte identify error in the 

record and reverse a judgment because the error was fundamental. 

That particular rule of law has existed for only eleven years and 

stemmed from a misapplication of an earlier case. As such, I 

caution against using this phrase, and cases citing it, as evidence 

of a longstanding rule of appellate law requiring reversal in this 

circumstance.

I do not dispute that some decisions have ruled that a court 

can reverse on unraised error, even ones that do not use the phrase 

“unrenunciable judicial duty.” But to the extent that district court 

decisions extend the right of the court to reverse on unraised error 

beyond that which is permitted by the Supreme Court (which, I 

 

8 It should be noted that neither Hendricks nor Adams

involved reversal of a conviction. So to the extent that those cases 

rule that the appellate court has a duty to correct unraised

fundamental error, such ruling would be dicta.
18

contend, circumscribes this power by limiting it to “obvious” 

fundamental error), then I disagree with those decisions. 9 In 

particular, this includes any case claiming broad authority for an 

appellate court to sua sponte address claims unraised by the 

appellant that it finds “fundamental,” on the basis that the court 

has an unrenunciable duty to correct such error.10

5. Anders v. California

Some opinions in this case have suggested that the procedure 

employed to effectuate Anders v. California, 386 U.S. 738 (1967), 

demonstrates that it is acceptable for the court to review the record 

sua sponte and reverse a conviction if it detects error. I believe 

this position misconstrues Anders.

 

9 I do not believe that my opinion conflicts with Florida 

Supreme Court decisions, as Judge Bilbrey’s dissent contends. 

Neither Bell v. State, 289 So. 2d 388 (Fla. 1973) nor Redditt v. 

State, 84 So. 2d 317 (Fla. 1955), involves the court reversing a 

conviction, on grounds unraised or otherwise, so I submit that an 

opinion questioning the validity of that practice is not implicated 

by these decisions. Any suggestion in those cases that an appellate 

court could reverse a conviction based upon unraised fundamental 

error is plainly dicta. As for D.H., I concede that I find the 

dissenting opinion persuasive, but my primary point about it is 

that we should give meaning to the term “obvious” when it 

discusses “‘obvious’ fundamental error.” I do not believe that 

making this point “conflicts” with D.H. 

10 District court cases are not uniform in their approach to the 

court’s right or duty to address unraised fundamental error. Some 

cases have in fact ruled that an appellate court may not consider 

an unraised fundamental error. See, e.g., Grimsley v. State, 939 So. 

2d 123, 125 (Fla. 2d DCA 2006) (finding that it was “precluded 

from reviewing” a possible fundamental error “because it was not 

raised on appeal”). Cf. Williams v. State, 845 So. 2d 987, 989 (Fla. 

1st DCA 2003) (ruling that the court “cannot consider” possible 

fundamental errors because the appellant “failed to raise these 

issues in the initial brief”). This belies any suggestion that such 

review is clearly permitted (or required) by the case law.
19

Anders suggests a procedure to ensure the right to counsel 

where appointed counsel believes the record presents no nonfrivolous issues:

[I]f counsel finds his case to be wholly frivolous, after 

a conscientious examination of it, he should so advise the 

court and request permission to withdraw. That request 

must, however, be accompanied by a brief referring to 

anything in the record that might arguably support the 

appeal. A copy of counsel’s brief should be furnished the 

indigent and time allowed him to raise any points that he 

chooses; the court—not counsel—then proceeds, after a 

full examination of all the proceedings, to decide whether 

the case is wholly frivolous. If it so finds it may grant 

counsel’s request to withdraw and dismiss the appeal 

insofar as federal requirements are concerned, or proceed 

to a decision on the merits, if state law so requires. On 

the other hand, if it finds any of the legal points arguable 

on their merits (and therefore not frivolous) it must, prior 

to decision, afford the indigent the assistance of counsel 

to argue the appeal.

Id. at 744. The point of Anders is not to require the appellate court 

to provide an extra layer of review to criminal judgments. It is to 

ensure that a defendant receives the right to counsel guaranteed 

by the United States Constitution when appointed counsel finds 

that an appeal would be wholly frivolous. When counsel so 

concludes, the Anders procedure requires the appellate court to 

review the record to determine that it agrees with counsel’s 

assessment that an appeal would be wholly frivolous. Appellants 

like Rosier, in contrast, have counsel who filed a brief arguing for 

reversal. He has already received his constitutional right to 

counsel, unlike a defendant whose appointed counsel finds no 

argument for reversal. Accordingly, there is no reason for the court 

to conduct its own review.11 As such, I do not believe that Anders

 

11 It should be noted that the United States Supreme Court 

does not require the Anders procedure. See Smith v. Robbins, 528 

U.S. 259, 276 (2000). In fact, several states have rejected the

Anders requirements in part because they “place[] the appellate 

court in the inappropriate role of defense counsel, forcing the court 
20

should be used to encourage appellate courts to depart from

judicial impartiality in cases where an argument for reversal has

been made.

6. Problems with sua sponte review for fundamental error

To be clear, I do not dispute that some cases contain language 

allowing an appellate court to reverse based on fundamental error 

not raised by the appellant. I do, however, dispute the broad 

assertion of authority to do so expressed by some opinions here, 

which I read as “if the court finds fundamental error, it should 

reverse.” I find that the scope of this right raises as many questions 

as it answers:

• Is the appellate court permitted to reverse on unraised 

fundamental error, or is it required to reverse? If it is 

merely permitted, how should the court exercise its 

discretion to do so?

 

to devise and recommend viable legal arguments for subsequent 

appellate counsel.” State v. Cigic, 639 A.2d 251, 252 (N.H. 1994); 

see also In re Attorney’s Fees of Mohr, 32 P.3d 647, 653 (Haw. 2001) 

(“It has been and continues to be the policy of this court not to 

permit Anders briefs. We think the better policy is to require 

counsel to remain an advocate for the client. . . . This policy reposes 

advocacy with counsel and judging with the court.”); Ramos v. 

State, 944 P.2d 856, 858 (Nev. 1997) (“The adversary system has 

served the administration of justice long and well. . . . The Anders

compromise with our traditional adversary process has failed to 

justify itself.” (quoting Gale v. United States, 429 A.2d 177, 183

(D.C. 1981) (Ferren, J., dissenting))); State v. Wilson, 83 N.E.3d 

942, 947 (Ohio Ct. App. 2017) (“The Anders procedure has also 

been criticized for creating a role reversal between counsel and the 

court and removing the adversarial nature of the judicial 

system.”). Anders, a controversial outlier in the regular adversary 

judicial system, does not suggest that we should sua sponte reverse 

here.
21

• If the appellate court is required to reverse (i.e., has an 

“unrenunciable duty” to reverse) unraised fundamental 

error, does it have a duty to review the entire record for 

such error, regardless of what the appellant raised on 

appeal? Doesn’t the phrase “unrenunciable duty” suggest 

that the appellate court must review the entire record?

• For instance, if the appellant raises only a sentencing 

issue, is the appellate court required to review the trial 

transcript for fundamental error?

• Is the appellate court required to supplement the record 

with parts of the proceedings that were not included in 

the record on appeal, in order to search for fundamental 

error? 

• Or is the appellate court required only to correct 

unraised fundamental error if it happens to stumble upon 

it?

• Doesn’t the latter procedure (i.e., the court does not 

need to look for unraised fundamental error, but must 

address it if it happens to notice it) conflict with a court’s 

“unrenunciable duty” to correct fundamental error? And 

doesn’t it invite arbitrary decisions, where relief is 

premised upon the court happening upon an error?

This last concern is demonstrated by Berben. The only 

sentencing argument raised by the appellant there was that the 

sentence imposed was disproportionate to the crime. Berben, 268 

So. 3d at 236. An appellate court can address this question without 

resort to the sentencing transcript. Suppose one panel considering 

a case with this matter addressed the proportionality issue 

without detecting the claimed error in the sentencing transcript, 

but another panel considering another case with this matter—like 

the one in Berben—reviewed the sentencing transcript and 

concluded that the trial judge’s comments were erroneous. Has 

justice been “applied fairly and evenly”? Id. at 239 (Cohen, J., 

concurring). Did the first panel do anything wrong by not noticing 

the unraised error in a transcript unrelated to the issue on appeal? 

I submit that this concern shows that an appellate panel that takes 
22

it upon itself to review the record for unraised error risks arbitrary 

justice far more than the panel that confines itself to the issues 

raised on appeal.

With these observations, I concur with the majority opinion.

M.K. THOMAS, J., concurring. 

“If judicial review means anything, it is that judicial restraint 

does not allow everything.” Robinson v. Crown Cork & Seal Co., 

Inc., 335 S.W. 3d 126, 163 (Tex. 2010) (Willett, J., concurring). The 

case before us presents no error in Mr. Rosier’s competency 

determination—much less error of an obvious and fundamental 

nature. Thus, argument regarding an appellate court’s obligation 

to correct unraised fundamental error is purely academic. 

The trial court previously adjudged Mr. Rosier incompetent 

based on a psychiatric evaluation. He was committed to Florida 

State Hospital for treatment. Eight months later, the Department 

of Children and Families (DCF) informed the trial court that Mr. 

Rosier no longer met the criteria for continued commitment 

pursuant to an updated forensic mental health competency 

assessment and evaluation. In response, the trial court entered an 

Order to Transport and Notice of Hearing. The order attached the 

mental health evaluation, ordered Mr. Rosier transported to a 

detention facility and a competency hearing to be scheduled. On 

August 13, 2014, at a hearing on the matter, defense counsel 

informed the trial court that Mr. Rosier had been discharged from 

Florida State Hospital but that no competency hearing had yet 

been conducted. Defense counsel advised she was not disputing 

competency “but I ask that we set [a hearing] first, prior to setting 

it for trial.” The state announced a willingness to stipulate to 

competency and allow the trial court to enter an immediate order. 

However, defense counsel clarified that although amenable to such 

a stipulation, she wanted Mr. Rosier present for the competency 

proceeding. Accordingly, the competency hearing was reset for the 

next day. 

The parties reconvened on August 14, 2014, with Mr. Rosier 

present. The competency hearing transcript shows that defense 

counsel advised the court of the following: Mr. Rosier had been 
23

discharged from Florida State Hospital; the report from the 

updated mental health evaluation declared Mr. Rosier competent 

to proceed to trial; she had conferred with Mr. Rosier personally 

and reviewed the report with him; she provided an update to the 

report’s recommendation that Mr. Rosier continue his medication 

regimen; she advised that in speaking to Mr. Rosier and his case 

manager that Mr. Rosier was no longer in need of or taking 

psychotropic medications; and she took steps to confirm that Mr. 

Rosier was no longer on psychotropic medications by contacting his 

detention facility. The trial court then proceeded to question Mr. 

Rosier on his mental status and medications. With no contrary 

argument from the state, the trial court orally advised Mr. Rosier 

that she found him competent to proceed and would set a docket 

sounding and trial date. Subsequently, the trial court entered an 

Order Finding Defendant Competent to Proceed. The order 

advised that the matter came before the court on the report of the 

Florida State Hospital psychologist and Mr. Rosier was found 

competent to proceed. 

The dissent initially argues that Mr. Rosier was entitled to “a” 

hearing to determine his competency. However, as the record 

contains a transcript of the competency hearing, the dissent 

detours to challenge the adequacy of the proceeding. In addition to 

the dissent’s consideration of argument not presented on appeal, I 

am troubled by the dissent’s citation of Dougherty and Zern as 

establishing a “thoroughness test” for competency hearings. 

Dougherty v. State, 149 So. 3d 672 (Fla. 2014); Zern v. State, 191 

So. 3d 962 (Fla. 1st DCA 2016). I readily profess blindness to this 

application as I fail to see such a bright-line test announced in 

either case. Independent of the judicial obligation versus restraint 

debate, I expressly reject that a “thoroughness test” has been 

pronounced in Dougherty or Zern. In Dougherty, no hearing 

occurred because the parties stipulated to competency, the trial 

court did not engage in independent analysis and no competency 

order was entered. Dougherty, 149 So. 3d at 674-75. In Zern, 

although the trial court conducted a competency hearing, “the trial 

court relied on the stipulation of defense counsel and the 

preponderance of the experts’ ultimate opinions to make its 

competency determination, without having read all the 

evaluations.” 191 So. 3d at 965. In Dougherty, our supreme court 

advised that pursuant to Florida Rules of Criminal Procedure 
24

3.210-3.212, a trial court may, if the parties agree, “decide the 

issue of competency on the basis of the written reports alone, it 

cannot dispense with its duty to make an independent 

determination about a defendant’s competency and must enter a 

written order if the defendant is found competent to proceed.” 149 

So. 3d at 679. Here, the trial court considered the mental health 

reports, information provided by defense counsel on her contacts 

with Mr. Rosier and his mental health caregivers and case 

manager and the update on his medication regimen. In addition, 

the trial judge personally questioned Mr. Rosier before entering an 

order of competency. 

After the updated mental health evaluation, the record 

presents no hint of incompetency that would require a closer 

scrutiny than afforded Mr. Rosier. Thus, our analysis should be 

tailored accordingly. Placing artificial parameters on competency 

hearings without deference to the factual particularities opposes 

the axiom of judicial discretion—here, to discern the necessary 

depth of a hearing to reach the required independent 

determination of competency. Indeed, under these facts Mr. Rosier 

was afforded every procedural due process protection, and the trial 

court’s independent determination of his competency fully 

complied with requirements of the Rule and Dougherty. 

I acknowledge that in D.H. v. Adept Community Services, Inc., 

No. SC17-829, 2018 WL 5660595, *6 (Fla. Nov. 1, 2018), our 

supreme court advised, “[e]ven though an issue has been 

abandoned, an appellate court may nonetheless address that issue 

if it involves the court’s ‘jurisdiction or other issues raising obvious 

fundamental errors.’” (quoting All. for Conservation of Nat. Res. in 

Pinellas Cty. v. Furen, 122 So. 2d 51, 65 (Fla. 2d DCA 1960)). This 

judicial power to review unpreserved fundamental error is 

permissive and should be deliberately rationed. However, 

appellate consideration of unraised fundamental error undermines 

the very confidence and predictability of the rules of appellate 

procedure. As Justice Canady described in his dissent, “[t]his 

requirement of specific argument and briefing is one of the most 

important concepts of the appellate process.” Id. at *13. 

Contrary to the dissent’s argument, the majority has not 

chosen to turn a blind eye to its judicial obligations or to any error, 
25

much less an obvious fundamental one, nor has it rationalized a 

judicial ratification of an invalid stipulation. With both eyes open 

and clear vision, we simply see no error here. Notably, when 

properly raised by the appellant in briefing, this Court has 

frequently reversed trial court orders on competency, when the 

trial court failed to make an independent determination of 

competency as required by the Rule and Dougherty. See Johnson 

v. State, 264 So. 3d 259 (Fla. 1st DCA 2019); Boren v. State, 262 

So. 3d 243 (Fla. 1st DCA 2018); Oats v. State, 253 So. 3d 1265 (Fla. 

1st DCA 2018); B.E. v. State, 253 So. 3d 772 (Fla. 1st DCA 2018); 

Pearce v. State, 250 So. 3d 791 (Fla. 1st DCA 2018); Robinson v. 

State, 250 So. 3d 777 (Fla. 1st DCA 2018); Francis v. State, 248 So. 

3d 263 (Fla. 1st DCA 2018); Berry v. State, 237 So. 3d 1165 (Fla. 

1st DCA 2018); Pamphile v. State, 216 So. 3d 765 (Fla. 1st DCA 

2017); Trueblood v. State, 193 So. 3d 1060 (Fla. 1st DCA 2016); 

Zern, 191 So. 3d 962. Here, the lack of error dictates otherwise. 

Under a banner of judicial obligation, the dissent promotes an 

“Anders-esque” review of all appellate cases. See Anders v. 

California, 386 U.S. 738 (1967) (holding that an appellate court 

assumes the responsibility of conducting a full and independent 

review of the case to discover any arguable issues apparent on the 

face of the record). However, this unfettered appellate review may 

result in egregious sentencing consequences and further due 

process concerns. As Judge Bilbrey profoundly recognizes in his 

dissent, an appellate court’s unsolicited takeover of a defendant’s 

case (especially when the defendant is represented by counsel) 

may not necessarily be a “win.” Respectfully, the dissent’s 

promotion of a strike zone of judicial obligation to correct unraised 

error creates a dangerous and unpredictable playing field. As this 

case presents no error with respect to the competency proceeding, 

I join the majority. 

MAKAR, J., dissenting.

“Justice is blind,” the adage symbolizing an impartial 

judiciary, doesn’t mean that appellate judges must put on blinders 

when fundamental errors stare at them from an appellate record, 

particularly errors affecting a defendant’s constitutional right not 

to be tried while incompetent, which in this case involves a 

perfunctory judicial ratification of an unlawful stipulation of 
26

counsel that the competency of a previously incompetent 

defendant had been restored. Zern v. State, 191 So. 3d 962, 964–65 

(Fla. 1st DCA 2016) (fundamental due process error where trial 

court accepts a stipulation of competence); Belizaire v. State, 188 

So. 3d 933, 935 (Fla. 1st DCA 2016) (same).

Appellate Court’s Duty to Correct Fundamental Error

Florida’s appellate courts have long recognized judicial 

authority—and a “unrenunciable” duty—to correct fundamental 

errors, meaning those of such gravity that ignoring and not 

correcting them would diminish public respect for the judicial 

process, even if those errors were not preserved at trial, not raised 

on appeal in the briefing process, or raised by the appellate court 

on its own. See, e.g., Bell v. State, 289 So. 2d 388, 391 (Fla. 1973) 

(“It is the long standing rule of this Court that when assignments 

of error are not argued in the briefs they will be deemed abandoned 

unless jurisdictional or fundamental error appears in the record.”) 

(emphasis added); Hendricks v. State, 34 So. 3d 819, 828 (Fla. 1st 

DCA 2010) (“Despite Appellant’s failure to argue fundamental 

error, we consider whether the purported error is of a fundamental 

nature because it is an appellate court’s ‘unrenunciable judicial 

duty’ to correct fundamental error even if it is not raised.”) (citation 

omitted); I.A. v. H.H., 710 So. 2d 162, 165 (Fla. 2d DCA 1998) 

(“Although positions that are not presented to the trial court or 

argued on appeal generally are waived, it is our duty to notice and 

correct jurisdictional defects or fundamental errors even when they 

have not been identified by the parties.”) (emphasis added); Bain v.

State, 730 So. 2d 296, 302 (Fla. 2d DCA 1999) (“the correction of 

fundamental error is not merely a judicial power; it is an 

unrenunciable judicial duty.”); J.V. v. State, 221 So. 3d 689, 691 

(Fla. 4th DCA 2017) (“Although appellant does not raise this issue 

on appeal, we conclude that [pleading defect] amounts to 

fundamental error which can be addressed sua sponte.”); Honaker

v. State, 199 So. 3d 1068, 1070 (Fla. 5th DCA 2016) (appellate court 

“may sua sponte address fundamental error apparent on the face 

of the record”); see also § 924.051(3), Fla. Stat. (2019) (“A judgment 

or sentence may be reversed on appeal only when an appellate 

court determines after a review of the complete record that 

prejudicial error occurred and was properly preserved in the trial 

court or, if not properly preserved, would constitute fundamental 
27

error.”) (emphasis added). By its nature, “fundamental error is not 

subject to harmless error review.” Reed v. State, 837 So. 2d 366, 

369-70 (Fla. 2002).

As the Fifth District recently held, “an appellate court may 

sua sponte address such an error if it is determined to be 

fundamental and is apparent on the face of the record.” Berben v.

State, 268 So. 3d 235, 238 (Fla. 5th DCA 2019). Florida’s 

fundamental error doctrine parallels the federal plain error 

doctrine, whose foundational parameters were based on United

States v. Atkinson, 297 U.S. 157, 160 (1936), which held that “[i]n

exceptional circumstances, especially in criminal cases, appellate 

courts, in the public interest, may, of their own motion, notice 

errors to which no exception has been taken, if the errors are 

obvious, or if they otherwise seriously affect the fairness, integrity, 

or public reputation of judicial proceedings.” (Emphasis added). 

See generally Fed. R. Crim. P. 52(b) (2019) (“A plain error that 

affects substantial rights may be considered even though it was 

not brought to the court’s attention.”); see also § 90.104(3), Fla. 

Stat. (2019) (noting that a court may take “notice of fundamental 

errors affecting substantial rights, even though such errors were 

not brought to the attention of the trial judge.”). Again, the error 

in question need not have been preserved at trial or raised in the 

briefing process; it can be addressed by an appellate court on its 

own, much as in Anders cases where an appellate court “assumes 

the responsibility of conducting a full and independent review of 

the record to discover any arguable issues apparent on the face of 

the record.” Michael Ufferman, § 20:7. Anders review, 22 Fla. 

Prac., Criminal Practice & Procedure § 20:7 (2019 ed.) (citing 

Anders v. State, 386 U.S. 738 (1967), and State v. Causey, 503 So. 

2d 321, 323 (Fla. 1987) (reading Anders to “allow both the 

appellant and the state to submit briefs on issues that the court has 

found in its independent review to be arguable on the merits.”) 

(emphasis added).

Our supreme court has made clear that an appellate court has 

an obligation to correct fundamental errors in the “interests of 

justice.” Ray v. State, 403 So. 2d 956, 960 (Fla. 1981); see also

Smith v. State, 521 So. 2d 106, 108 (Fla. 1988); Bain, 730 So. 2d at 

302 (purpose of fundamental error doctrine “extends beyond the 

interests of a particular aggrieved party; it protects the interests 
28

of justice itself. It embodies the courts’ recognition that some errors 

are of such a magnitude that failure to correct them would 

undermine the integrity of our system of justice.”) The doctrine is 

not a judicial license to correct any and all errors; instead, it is

applied in those infrequent instances where errors go to the 

“foundation of the case or goes to the merits of the cause of action.” 

Ray, 403 So. 2d at 960. The list of fundamental errors includes the 

total failure of evidence to establish the commission of a crime, the 

facial unconstitutionality of a criminal statute used to charge a 

defendant, double jeopardy violations, convictions for non-existent 

offenses, as well as denials of due process including the failure to 

provide a hearing required by the criminal procedure rules. See 

generally Philip J. Padovano, § 27:3. Fundamental Error, 2 Fla. 

Prac., Appellate Practice § 27:3 (2018 ed.) (citing cases); see, e.g., 

F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 2003) (holding that 

evidence that “is totally insufficient as a matter of law to establish 

the commission of a crime need not be preserved” and “meets the 

requirements of fundamental error-i.e., an error that reaches to 

the foundation of the case and is equal to a denial of due process.”). 

Due Process & Incompetency: 

Reliance on a Stipulation is Fundamental Error

The list of fundamental errors includes due process violations 

arising from inadequacies in determining a defendant’s 

competency to stand trial. The due process right of a defendant to 

not be subject to trial when incompetent is a long-standing and 

weighty one. Drope v. Missouri, 420 U.S. 162, 171 (1975) (“It has 

long been accepted that a person whose mental condition is such 

that he lacks the capacity to understand the nature and object of 

the proceedings against him, to consult with counsel, and to assist 

in preparing his defense may not be subjected to a trial.”); see also

Medina v. California, 505 U.S. 437, 446 (1992) (“The rule that a 

criminal defendant who is incompetent should not be required to 

stand trial has deep roots in our common-law heritage.”); Cotton v.

State, 177 So. 3d 666, 667–68 (Fla. 1st DCA 2015) (“It is a due 

process violation to proceed against an incompetent criminal 

defendant.”); see generally Hopkins v. State, 632 So. 2d 1372, 1374 

(Fla. 1994) (unpreserved error is fundamental if it is “basic to the 

judicial decision under review and equivalent to a denial of due 

process.”).
29

As this Court has held, fundamental error occurs when an 

incompetent criminal defendant is denied an adequate process and 

a meaningful and independent judicial hearing by which his 

current competency to stand trial is reviewed and adjudged in a 

conscientious way. Zern, 191 So. 3d at 964 (“A criminal defendant 

has a procedural due process right to the observance of procedures 

adequate to protect his or her right not to be tried or convicted 

while incompetent to stand trial.”) (emphasis added). Indeed, an 

“independent competency finding is a due-process right that 

cannot be waived” such that a trial court “fundamentally err[s] in 

failing to make such a finding.” Id. at 965 (emphasis added). Stated 

differently, where the record demonstrates that a competency 

decision is not based on the trial court’s independent 

determination of a defendant’s current competency, fundamental 

error is shown.

In this regard, it is a non-waivable fundamental error where 

a stipulation of a defendant’s competency is relied upon in the 

competency process. The reason is that reliance on a stipulation 

“improperly absolves the trial court from making an independent 

determination regarding a defendant’s competency to stand trial.” 

Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014); see also Zern, 

191 So. 3d at 964 (trial court “is not permitted to merely accept a 

stipulation of competence.”). As stated in Ross v. State, 155 So. 3d 

1259 (Fla. 1st DCA 2015):

In order to proceed against a defendant who has been 

adjudicated incompetent, the trial court first must hold a 

hearing to determine whether the defendant’s 

competency has been restored, review evidence from 

experts during the hearing, make an independent 

determination that the defendant’s competency has been 

restored, and enter a written order to that effect. These 

requirements cannot be waived by a stipulation.

Id. at 1259-60 (citing Dougherty) (emphasis added); see also

Belizaire, 188 So. 3d at 935 (same).

Counsel may agree to have the independent judicial 

determination of competency be based on expert reports without 

live testimony, but those reports are only advisory. Zern, 191 So. 
30

3d at 964. Stipulations as to competency are not reports, however, 

and cannot be relied upon at all else the independent judicial 

determination is compromised, resulting in fundamental error. Id.

Reliance on a stipulation, even in part, violates due process even 

where other evidence is considered. Id. (“acceptance of a 

stipulation is improper even when all the experts have opined that 

the defendant is competent, as other evidence may indicate 

incompetence.”). For example, in Zern this Court noted that the 

“trial court relied on the stipulation of defense counsel and the 

preponderance of the experts’ ultimate opinions to make its 

competency determination, without having read all the 

evaluations.” Id. at 965 (emphasis added). By doing so, the trial 

court failed to make an “independent finding” and thereby 

“fundamentally erred” in doing so. Id.

Stipulation to Rosier’s Competency

& The “Two Second” Hearing

Turning to this case, Roger N. Rosier was adjudicated 

incompetent to stand trial in October 2013 for resisting arrest, the 

trial court ruling that Rosier was “suffering from a serious, chronic 

major mental illness” and presenting himself as “psychotic and 

significantly impaired in his thinking, which is disorganized and 

delusional.” Rosier’s “disordered thinking would almost certainly 

interfere with his being able to” assist in his defense and “testify 

relevantly” at trial; it was “highly unlikely” that he would be able 

to engage in appropriate courtroom behavior; and he had an 

“inadequate appreciation of the charges, the possible penalties” he 

faced, and the “adversarial nature of the legal process.” As such, 

he was deemed incompetent to proceed with any legal proceedings 

and was involuntarily placed for psychiatric hospitalization due to 

the “real and present threat of substantial harm” to his well-being.

Nine months later, a report from Florida State Hospital 

deemed Rosier competent to stand trial and a hearing on the 

matter was set for July 9, 2014 before the original trial judge who 

had found Rosier incompetent. That hearing, however, did not take 

place. Instead, on August 13, 2014, the prosecutor and appointed 

defense counsel met to docket the case for trial with a new judge 

who had never observed Rosier. After the trial date was set, it 
31

occurred to Rosier’s counsel that a restored competency hearing 

had not yet been held. 

[Defense counsel]: We have not had a competency hearing 

for Mr. Rosier. I ask that we set that so that – we’re not 

disputing competency—but I ask that we set that first, 

prior to setting it for trial.

[Prosecutor]: If you stipulate, we can do it right now. Your 

Honor, if there’s a stipulation as to his competency, that 

can be done per stipulation, then the Court can rule on it.

[Defense counsel]: We’re stipulating that he’s competent. 

He’s not present, but I would prefer him to be present. If 

we can reset it for court tomorrow, so that we can address 

it.

The trial judge, who expressed frustration with counsel due to last 

minute rescheduling complications, 12 was concerned about how 

much time the stipulated competency matter would take, saying 

“How long is it going to take, two seconds?” Appointed counsel 

responded, saying “it won’t take more than – more than thirty 

seconds” because “[w]e’re stipulating that he’s competent.”

Based on the stipulation of the prosecutor and appointed 

counsel, the “hearing” the following day was—as predicted—

perfunctory, amounting to less than two pages of transcript. The 

trial court asked only whether Rosier felt well (“I’m good. . . . A lot 

better.”), and whether he was taking any medications or 

psychotropic drugs (“No ma’am.”). With that, Rosier—diagnosed 

with severe mental illness and deemed incompetent to stand trial 

and a harm to himself ten months earlier—was pronounced 

 

12 The trial court said, “I mean, this is the problem. In the last 

twenty-four hours, the e-mails blow up, the phone calls blow up, 

everything gets moved around; it’s insane. . . . So, do y’all start 

looking at your cases forty-eight hours before court? Because it is 

like everything goes crazy.”
32

competent to proceed, a standard order was issued,13 and he was 

tried and convicted. 

Fundamental Error on the Face of the Record

As in Zern, Belizaire, and other stipulation of competency 

cases, the requirements of an adequate competency process were 

not met in Rosier’s case because there is no indication that 

sufficient judicial review was done to form an “independent 

determination that the defendant’s competency has been 

restored.” Ross, 155 So. 3d at 1259 (citing Dougherty). This is so 

because the prosecutor and appointed counsel stipulated to 

Rosier’s competency. Both believed—and had agreed the day 

before the “hearing” without Rosier present—that a competency 

determination could be done by stipulation. Appointed counsel, 

who preferred a hearing the next day when Rosier would be 

present, said the hearing would take only “thirty seconds” and the 

trial judge thought even less (“two seconds”), which confirms that 

the seconds-long “hearing” was simply to ratify the stipulation. 

This rote ratification of a stipulation is much like Belizaire, where 

defense counsel told the trial judge the defendant was competent 

to proceed to trial (based on the expert reports of the state and the 

defense) to which the trial court responded, “All right.” 188 So. 3d 

at 935. This Court concluded that it “must interpret the court’s 

statement of ‘All right’ as simply accepting [defendant’s] counsel’s 

stipulation that because both experts found [defendant] 

competent, they could proceed with the trial.” Id. Reversal and a 

remand was the result.

 

13 The trial court’s order stated: 

THIS CAUSE having come before the Court on the report 

of Leslie Dellenbarger, Psy.D. Senior Psychologist, 

Florida State Hospital of June 19, 2014, that the 

Defendant is competent to proceed, and the Court being 

fully advised in the premises, it is hereby

 ORDERED AND ADJUDGED:

1. The Defendant is currently competent to proceed to 

trial.
33

Of note, Rosier was never asked about the state’s expert 

report or whether he agreed to it. Nor was he asked whether he 

was aware of or agreed with the lawyers’ stipulation of his restored 

competency. And the trial judge neither discussed nor stated she’d 

reviewed the report – why would she if there was a stipulation? Cf.

Hunter v. State, 174 So. 3d 1011, 1014-15 (Fla. 1st DCA 2015) 

(where the trial court, “on the record, did consider the two reports 

from the forensic mental health specialists concluding that 

Hunter’s competency was restored.”). Her observation and 

questioning of Rosier were cursory at best. Her written order, 

which simply says the matter had “come before” the court on the 

state’s report, doesn’t show that the judge actually reviewed or 

relied on it. Zern, 191 So. 3d at 965 (failure to make independent 

finding where no showing that trial judge “read all the 

evaluations.”); cf. Merriell v. State, 169 So. 3d 1287, 1288 (Fla. 1st 

DCA 2015) (where “the court stated that it had reviewed the 

evaluation” and “relied on it as permitted by the rules” to find the 

defendant competent to proceed). Indeed, the order’s boilerplate 

language (that the court was “fully advised in the premises”) 

supports the appearance that the court was ratifying the 

stipulation; after all, the trial judge had been “fully advised” the 

prior day of the stipulation and envisioned a “two second” hearing. 

The language saying the report had “come before” the trial court 

doesn’t mean it was actually reviewed or relied on; why take the 

time to do so where a stipulation is in place? Rosier’s attorneys, 

both at trial and on appeal, contributed to the problem, as did the 

prosecutor and trial judge: none of them balked at judicial 

ratification of a stipulation of competency at a pro forma “hearing” 

that took negligible time.

On the face of the record, the “hearing” does not reflect the 

type of independent judicial determination the caselaw requires to 

establish that Rosier’s competency had been restored. In a sense, 

it was not a hearing at all but merely a mechanical and superficial 

rubber-stamp of the lawyers’ stipulation of competency for which 

relief is justified.
34

The Panel Majority Properly Adjudicated the Competency Issue,

Which Presented a Non-Waivable Fundamental Error

The appellate panel, like the en banc court itself, has a duty 

to review the record for fundamental errors even those not directly 

raised by the defendant. This is a criminal appeal, one in which an 

appellate panel should not ignore fundamental error that appears 

in the record. Causey, 503 So. 2d at 322–23 (“While courts should 

not assume the role of appellate counsel, reversible error should 

not be ignored simply because an indigent appellant or a public 

defender failed to point it out.”) (emphasis added). Had this case 

been presented to the Court via an Anders brief or by Rosier pro 

se, the same obligation would attach: The Court should review the 

record for fundamental error and not abandon the inquiry simply 

because appointed counsel didn’t do its job well enough.

In this case, the parties’ briefs directed the panel to a potential 

problem with the competency determination. The panel majority 

did not “sua sponte” raise the competency issue, as has been 

suggested. Rather, appointed counsel’s brief asserted the lack of 

any hearing; the State’s brief countered that a hearing was held 

(supplementing the record with transcript excerpts) and that it 

was adequate, 14 thereby focusing the panel’s attention on the 

issue. It is plausible that Rosier’s appellate counsel simply 

overlooked or was unaware of the three to four pages of 

supplemental transcript comprising counsels’ stipulation to 

Rosier’s competency and the perfunctory “hearing” the next day. 

But a reply brief (or a request to submit an amended initial brief) 

ought to have been forthcoming once those transcript pages 

became known.

Even if the competency issue hadn’t been raised in the briefing 

process, however, it was permissible to consider it sua sponte 

because an adequate competency determination is a non-waivable

due process right, the denial of which is fundamental error that a 

panel cannot disregard. Zern, 191 So. 3d at 965 (“[A]n independent 

competency finding is a due-process right that cannot be waived 

 

14 Perhaps because it recognized the fundamental nature of 

the issue, the State spent all but one page of its answer brief 

arguing that the competency determination was adequate.
35

once a reason for a competency hearing has surfaced . . . .”). As 

such, it is irrelevant whether Rosier’s appellate counsel adequately 

raised the issue. Id.; Cotton, 177 So. 3d at 667. Perhaps the panel 

should have issued a Causey order and ordered supplemental 

briefing, but the State had already briefed the issue, and the panel 

majority was well-versed in the applicable precedent, such that no 

prejudice was shown. In re Order of First Dist. Court of Appeal

Regarding Brief Filed in Forrester v. State, 556 So. 2d 1114, 1117 

(Fla. 1990); Cotton, 177 So. 3d at 667 (ordering supplemental 

briefing in Anders appeal where the panel’s “independent review 

of the record” identified potential error in competency process). 

The error was obvious, and the record supported reversal.

Because the trial judge did not conduct an independent 

competency determination, fundamental error exists and Zern, 

Belizaire, and like cases control. Simply “going through the 

motions” and ratifying counsels’ stipulation as to competency in a 

perfunctory and pre-ordained process doesn’t cut it under the 

caselaw. See Dougherty, 149 So. 3d at 678 (“[N]othing in our 

precedent or the State’s argument persuades us that a defendant 

can stipulate to the ultimate issue of competency, even where the 

written reports reach the same conclusion.”). Due process goes 

beyond checking boxes. That a hearing (of sorts) was held doesn’t 

mean it was adequate. For example, this Court’s review of the 

record in Zern showed the “trial court relied on the stipulation of 

defense counsel and the preponderance of the experts’ ultimate 

opinions to make its competency determination, without having 

read all the evaluations.” 191 So. 3d at 965 (emphasis added). In 

that case, the trial court wasn’t “adequate” enough to meet due 

process standards, in part, because of the reliance on the 

stipulation and the failure to read “all the evaluations.” Id. In 

contrast, this case presents no evidence to support a finding that 

the trial judge read anything, which wouldn’t be surprising given 

counsels’ stipulation without Rosier present that his competency 

had been restored and that the “hearing” to ratify the counsels’ 

stipulation would take “thirty seconds” or just “two seconds” as the 

trial judge prognosticated.
36

Conclusion

The en banc court has chosen to exercise its discretion by 

turning a blind eye to an obvious fundamental error that is easily 

corrected by a remand and a proper competency hearing, instead 

leaving it to the post-conviction process to rectify the due process 

violation and potential ineffectiveness of counsel. I would correct 

the error now, guided in part by the following statement of 

principles: 

Although fundamental error is extraordinarily difficult to 

define, the doctrine functions to preserve the public’s 

confidence in the judicial system. Relief is granted for a 

fundamental error not because the party has preserved a 

right to relief from a harmful error, but because the 

public’s confidence in our system of justice would be 

seriously weakened if the courts failed to give relief as a 

matter of grace for certain, very limited and serious 

mistakes.

Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 584 (Fla. 

2d DCA 1996) (emphasis added), disapproved of on other grounds

by Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000). 

For my part, I fail to see how rationalizing and upholding a 

perfunctory judicial ratification of an invalid stipulation of 

competency, which this Court has previously held is fundamental 

error (Zern, Belizaire), does anything other than diminish this 

confidence.

* * *

Postscript

A few points are worthy of mention. First, the point of 

departure in this case is the majority’s unwillingness to look 

beyond the initial brief, even though statutory law and precedent 

authorize doing so. It is one thing to engage in fundamental error 

review and conclude that no error, fundamental or otherwise, 

exists; it is quite another to say the Court simply will not engage 

in fundamental error review at all when an issue was unpreserved 

or not raised on appeal. The former is defensible, the latter is not. 

Second, none of the dissenters in this case make any claim that an 
37

“appellate court must act as standby counsel” or that a court must 

“scour the record” in every case for fundamental record, as the 

majority charges. These are classic straw men statements, 

designed to distract from the merits of the case. Third, the

majority’s first sentence is misleading because it says that Rosier’s 

conviction was reversed, but it fails to mention the case was 

remanded for a hearing at which Rosier’s competence would be 

reviewed; if the trial judge determined nunc pro tunc that Rosier 

was competent, his conviction would stand; if not, a new trial 

would be required, which is standard relief in this type of case.

Next, Judge Winokur would depart from precedent and 

preclude an appellate court from correcting fundamental errors on 

its own, citing Justice Canady’s dissent in D.H. v. Adept Cmty.

Servs., Inc., No. SC17-829, 2018 WL 5660595 (Fla. Nov. 1, 2018). 

Fairly read, however, Justice Canady’s opinion did not advocate 

renunciation of fundamental error analysis; instead, he advocated 

that “[i]n the end, absent some exception to the waiver doctrine

[such as the fundamental error doctrine], an appellant who 

abandons an argument cannot benefit from that argument in the 

future.” Id. at *13. Plus, D.H. is a civil case, which has a higher 

fundamental error standard than criminal cases in which due 

process and liberty interests are most prominent. See Norman v.

Gloria Farms, Inc., 668 So. 2d 1016, 1027 n.1 (Fla. 4th DCA 1996) 

(“In other words, the threshold for finding fundamental error must 

actually be lower in criminal cases to insure that an accused 

person’s rights under the fourth, fifth and sixth amendments are 

not lost” in the criminal process.) (Farmer, J., dissenting); see 

generally Valeria Hendricks, Pop Quiz: Why Is Fundamental Error

Like Pornography?, 76 Fla. B.J. 77, 78 (2002) (analyzing 

fundamental error doctrine’s application at various stages of civil 

cases, noting that courts are “likely to see fundamental error in

constitutional issues involving due process.”). 

His claim that the lack of preservation precludes appellate 

review under a fundamental error exception is directly contrary to 

established precedent. See, e.g., Bain, 730 So. 2d at 302 (“appellate 

review of fundamental error is, by its nature, an exception to the 

requirement of preservation. Indeed, it is only in this context that 

the concept has meaning. Put another way: no rule of preservation 

can impliedly abrogate the fundamental error doctrine because the 
38

doctrine is an exception to every such rule.”). He would apparently 

ignore the Legislature’s clearly expressed will as set forth in 

section 924.051(3), which allows appellate courts to review and 

reverse judgments and sentences in cases where unpreserved 

errors “constitute fundamental error.” What circumstances 

constitute fundamental error are open to debate, but the 

fundamental error doctrine’s application to issues not raised on 

appeal is not.

Finally, Florida’s appellate judges—who for decades through 

the present have conscientiously applied the fundamental error 

doctrine in hundreds of cases—are not roving squadrons of 

unrestrained judicial activists looking to assist criminal 

defendants by overturning convictions. Far from it. They are 

simply doing their duty as defined by statute, precedent and the 

circumstances of each case as they deem proper. Fundamental 

error (and Anders review) are nothing new in Florida’s judicial 

system. If the Legislature and our supreme court (or the people by 

constitutional amendment) want to alter or abolish the 

fundamental error doctrine, that is up to them, not us. Until that 

happens, our duty is to correct fundamental error on the face of the 

record as the Legislature and our supreme court have authorized.

BILBREY, J., dissenting.

I join Judge Makar’s dissent.15 I write separately for two 

purposes. First, to dispute the contention that we must ignore the 

error here — which was fundamental — since the error was not 

raised by the Appellant. Second, to emphasize that I believe

nothing in the record shows the trial court fulfilled “its duty to 

independently make a determination of a defendant’s competency 

to proceed.” Dougherty v. State, 149 So. 3d 672, 673 (Fla. 2014). 

As such remand for further proceedings is necessary.16 

 

15 I agree with the majority that the discretionary fine and 

surcharge must be reversed.

16 Although I believe Appellant should prevail on the appeal, 

I am not sure that “winning” is ultimately in Appellant’s best 

interest. He was found guilty of the lesser included misdemeanor 

offense of resisting an officer without violence and sentenced to 
39

On my first point, the general rule — as discussed by the en 

banc majority — is that error must be raised by an appellant in 

the initial brief to be considered by an appellate court. See Doe v. 

Baptist Primary Care, Inc., 177 So. 3d 669 (Fla. 1st DCA 2015);

City of Bartow v. Brewer, 896 So. 2d 931 (Fla. 1st DCA 2005); Fla. 

R. App. P. 9.210(b)(1)&(5). But like so many areas of law there is 

a key exception to the general rule, and the exception applies here. 

Even if an issue is not raised by an appellant, “an appellate court 

may nonetheless address that issue if it involves the court’s 

‘jurisdiction or other issues raising obvious fundamental errors.’” 

D.H. v. Adept Cmty. Servs., Inc., 43 Fla. L. Weekly S533, S535, 

2018 WL 5660595, *6 (Fla. Nov. 1, 2018) (quoting Alliance for 

Conservation of Nat. Res. in Pinellas Cty. v. Furen, 122 So. 2d 51, 

65 (Fla. 2d DCA 1960)). 

The ability of an appellate court to address jurisdictional or 

fundamental error is not a mere suggestion as the majority claims. 

Majority Op. at 4. Rather, it is a well-established holding from the 

Florida Supreme Court, this court, and other courts. In Hendricks 

v. State, 34 So. 3d 819, 828 (Fla. 1st DCA 2010), we stated:

Despite Appellant’s failure to argue fundamental error, 

we consider whether the purported error is of 

a fundamental nature because it is an 

appellate court’s “unrenunciable judicial duty” to 

correct fundamental error even if it 

is not raised. See Bain v. State, 730 So. 2d 296, 302 (Fla. 

2d DCA 1999) (called into doubt on other grounds in State 

v. Jefferson, 758 So.2d 661, 664 (Fla. 2000)); see also I.A. 

v. H.H., 710 So. 2d 162, 165 (Fla. 2d DCA 1998) (noting 

that it is an appellate court’s “duty to notice and correct 

... fundamental errors even when they have not been 

identified by the parties”).

 

time served. If we were to remand for a competency determination 

and if the trial court could not determine whether Appellant was 

competent at the time of trial, then at the de novo retrial he would 

be subject to the felony charge and potential five-year sentence 

from resisting an officer with violence. Compare §§ 843.01 and 

843.02, Fla. Stat. (2013). 
40

See also Bishop v. State, 21 So. 3d 830, 832 (Fla. 1st DCA 2008) 

(discussing our “unrenunciable judicial duty” to correct 

fundamental error).17

A due process violation is fundamental error. “[F]or an error 

to be so fundamental that it can be raised for the first time of 

appeal, the error must be basic to the judicial decision under 

review and equivalent to a denial of due process.” State v. Jackson, 

616 So. 2d 1, 3 (Fla. 1993); see also Pressley v. State, 73 So. 3d 834, 

836-37 (Fla. 1st DCA 2011) (holding error “equivalent to denial of 

due process” to be fundamental error). 

In Dougherty, the Florida Supreme Court held “a trial court’s 

failure to observe the procedures outlined in Florida Rules of 

Criminal Procedure 3.210-3.212—procedures determined to be 

adequate to protect a defendant’s right not to be tried or convicted 

while incompetent to stand trial—deprives a defendant of his due 

process right to a fair trial.” 149 So. 3d at 679. We recognized this 

holding in Dougherty in Zern v. State, 191 So. 3d 962, 965 (Fla. 1st 

DCA 2016), where we stated, “Because an independent 

competency finding is a due-process right that cannot be waived 

once a reason for a competency hearing has surfaced, the trial 

court fundamentally erred in failing to make such a finding.” 

In Sheheane v. State, 228 So. 3d 1178, 1180 (Fla. 1st DCA 

2017), we held, “It is this right to the trial court’s independent 

 

17 In determining that no fundamental error occurred here at 

least the en banc majority wisely does not attempt to overrule

Hendricks v. State, 34 So. 3d 819 (Fla. 1st DCA 2010), and Bishop 

v. State, 21 So. 3d 830 (Fla. 1st DCA 2008). To do so, as suggested 

in the concurring opinion of Judge Winokur, would conflict with 

various Florida Supreme Court decisions going back over 60 years, 

such as D.H. v. Adept Cmty. Servs., Inc., 43 Fla. L. Weekly S533, 

2018 WL 5660595 (Fla. Nov. 1, 2018); Bell v. State, 289 So. 2d 388 

(Fla. 1973); and Redditt v. State, 84 So. 2d 317 (Fla. 1955). To do 

so would also put us in conflict with decisions of other district

courts, such as Bain v. State, 730 So. 2d 296, 302 (Fla. 2d DCA 

1999), and Randall v. Griffin, 204 So. 3d 965 (Fla. 5th DCA 2016).

 
41

assessment of competency that lies at the heart of the due process 

requirement.” There, we further held that failure to follow the 

dictates of Dougherty “is a denial of due process, resulting in 

fundamental error that requires our intervention despite 

Appellant’s failure to preserve it below.” Sheheane, 228 So. 3d at 

1181. Therefore, based on established case law, we should address 

the error which occurred here since it was fundamental error 

which deprived Appellant of due process.18 

As to my second point, no independent determination of 

Appellant’s competency occurred here. At the hearing on August 

13, 2014, the parties stipulated to Appellant’s competency, and the 

trial court was prepared to accept the stipulation. The trial court 

may have thought such a stipulation was acceptable since the 

relevant events concerning the Appellant’s competency occurred 

two months before the Florida Supreme Court in Dougherty held 

“nothing in our precedent or the State’s argument persuades us 

that a defendant can stipulate to the ultimate issue of competency, 

even where the written reports reach the same conclusion.” 149 

So. 3d at 678.19 

 

18 I do not contend, as claimed by the en banc majority, that 

we must “act as standby appellate counsel and scour the record in 

each case for fundamental error.” Majority Op. at 5 n.1. In fact 

“scouring” is clearly unnecessary when an error is obvious. By 

limiting an appellate court’s ability to address error not raised by 

an appellant to only instances of jurisdictional or fundamental 

error, our ability to address unpreserved error is appropriately 

limited since jurisdictional or fundamental error both have 

objective standards. See, e.g., Sanford v. Rubin, 237 So. 2d 134, 

137 (Fla. 1970) (defining fundamental error as “error which goes 

to the foundation of the case” and noting that an appellate court 

should “exercise its discretion under the doctrine of fundamental 

error very guardedly”). 

19 In August 2014, there was a split of authority among the 

district courts. The Fifth District allowed stipulations to 

competency in Dougherty v. State, 96 So. 3d 984 (Fla. 5th DCA 

2012), while the Fourth District disallowed stipulations in 

Macaluso v. State, 12 So. 3d 914 (Fla. 4th DCA 2009). This court 

and the Florida Supreme Court had apparently not weighed in on 
42

The transcripts of the hearings on August 13 and 14, 2014, 

show that at no time did the trial court disallow the stipulation or 

otherwise make clear that “the court decides” the issue of 

competency. See Fla. R. Crim. P. 3.212(c)(7). The written order 

finding Appellant to be competent likewise does not show an 

independent determination by the trial court; instead it shows only 

that the matter came before the court on “the report of Leslie 

Dellenbarger, Psy.D.” “[T]hese written reports are advisory to the 

trial court” since a defendant’s competency is a legal question for 

the trial judge to determine rather than a medical question. 

Dougherty, 149 So. 3d at 678. While the parties can stipulate to 

the admission of an expert report regarding competency, a trial 

court’s determination of competency solely based on the stipulated 

admission of an expert report “improperly absolves the trial court 

from making an independent determination regarding a 

defendant’s competency to stand trial. Id. 

So here, as in Zern, the trial court’s action “does not show an 

independent finding.” 191 So. 3d at 965. Reversal and remand for 

an independent competency determination is therefore required 

per Dougherty, Zern, and numerous other cases. Because the 

majority affirms the due process violation which occurred here, I 

respectfully dissent. 

_____________________________

Melissa Joy Ford, Assistant Regional Conflict Counsel, Office of 

Criminal Conflict and Civil Regional Counsel, Tallahassee, for 

Appellant. 

Ashley Moody, Attorney General; Trisha Meggs Pate, Tallahassee 

Bureau Chief, Criminal Appeals; Samuel B. Steinberg and Steven 

E. Woods, Assistant Attorneys General, Tallahassee, for Appellee. 

 

the issue of stipulations to competency, so the trial judge here was 

free to decide whether to follow the Fourth or Fifth District. See 

Pardo v. State, 596 So. 2d 665 (Fla. 1st DCA 1992).