DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

JOVON DIXON,

Appellee.

No. 4D18-3694

[March 11, 2020]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Ernest A. Kollra, Judge; L.T. Case Nos. 03-10133CF10A

and 14-2594CF10A.

Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III, 

Assistant Attorney General, West Palm Beach, for appellant.

Richard L. Rosenbaum of Law Offices of Richard Rosenbaum, Fort 

Lauderdale, for appellee.

DAMOORGIAN, J.

The State appeals a final order granting Jovon Dixon’s (“Defendant”) 

Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, 

finding counsel was ineffective and vacating Defendant’s plea agreement. 

On appeal, the State argues that the trial court erred in granting 

postconviction relief on a ground not raised by Defendant in his rule 3.850 

motion. Finding merit to the State’s argument, we reverse.

In 2003, Defendant was charged with robbery. He pleaded guilty and 

was sentenced to a prison term followed by probation. In 2014, while still 

on probation, Defendant was charged with new law violations. While his 

new case was pending, Defendant underwent a competency evaluation 

and was found competent to proceed. The following year, defense counsel 

requested another evaluation, which the trial court granted. Defense 

counsel never presented the competency reports to the trial court or 

requested a hearing on Defendant’s competency. Defendant then changed 

his plea to guilty on all counts and admitted to violating the terms and 
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conditions of his probation. Defendant was sentenced on all pending 

cases.

Thereafter, Defendant filed a rule 3.850 motion for postconviction relief 

on six grounds. The State conceded that Defendant was entitled to an 

evidentiary hearing on the second ground but argued that Defendant was 

not entitled to a hearing on the remaining five grounds. The issue in 

ground two was whether counsel was ineffective in misadvising Defendant

on the effect of a prison releasee reoffender (“PRR”) sentence pursuant to 

section 775.082(9)(b), Florida Statutes (2015). The trial court agreed with 

the State and conducted an evidentiary hearing on ground two and 

summarily denied the other grounds raised in Defendant’s motion.

At the evidentiary hearing, after both sides presented their witnesses 

and argued the PRR issue, the trial court sua sponte brought up the 

competency issue during the following exchange:

THE COURT: Do you a have any other witnesses?

THE STATE: No, sir.

THE COURT: Fine, thank you. I do not need argument. I do 

not need argument. I will need some time to research this [the 

PRR issue]. I am – although not with respect to the Motion 

or anything like that, I am concerned about him taking a 

Plea where there is no Court Order when Competency was 

clearly ordered. And Judge McCarthy ordered the evaluation, 

that is what I should say. I don’t even know whether it came 

back, although [defense counsel] says that it did come back. 

I know that if it did come back, that the Court would have 

gotten a copy of it, and I know that because I get those every 

day, and there is no – I know that the Evaluation does not get 

into Odyssey, but there is no Court Order . . . So as I stated, I 

am concerned about that . . . And then I have to make a 

decision with respect to the testimony that we heard today, as 

to the PRR; but the Court on its own is going to take a look 

at the Competency situation.

(emphasis added).

At the conclusion of the evidentiary hearing, the trial court found that 

Defendant’s counsel was ineffective for (1) failing to submit the competency 

reports to the trial court; and (2) failing to request a competency 
3

determination. It did not find that counsel was ineffective for misadvising 

Defendant on the effect of a PRR sentence. This appeal follows.

The State argues the trial court erred in granting postconviction relief 

on a ground not raised by Defendant and not allowing it an opportunity to 

respond to the competency issue. In the alternative, the State argues that 

had the claim been properly raised, the claim would have failed because 

there was insufficient evidence to “establish ‘at least’ a reasonable 

probability that [Defendant] would have been found incompetent.” 

Thompson v. State, 88 So. 3d 312, 318 (Fla. 4th DCA 2012). We agree.

A trial court can only properly grant postconviction relief on a ground 

raised by the defendant. State v. Daniels, 826 So. 2d 1045, 1046 (Fla. 5th 

DCA 2002) (citing Roberts v. State, 715 So. 2d 302, 303 (Fla. 5th DCA 

1998)); see also Greenlee v. State, 832 So. 2d 900, 900 (Fla. 3d DCA 2002)

(holding defendant could not raise on appeal of order denying motion for 

postconviction relief an argument that was not raised in his motion for 

postconviction relief). The Fifth District’s opinion in Daniels is instructive.

In granting the post-conviction motion, the trial court did 

not find, as claimed in the defendant’s motion, that trial 

counsel was ineffective for failing to request that the jury be 

instructed on the crime of resisting a merchant. Rather, the 

trial court ruled, sua sponte, that counsel’s representative fell 

below the objective standard of reasonableness because he 

failed to discuss the lesser included offense instructions with 

the defendant and failed to expressly waive the resisting a 

merchant instruction on the record.

Since a trial court can only properly grant post-conviction 

relief on a ground raised by the defendant, the trial court’s 

instant grant of relief based on a ground not set forth in the 

defendant’s motion was error.

Daniels, 826 So. 2d at 1046 (citing Roberts, 715 So. 2d at 303).

In ground two of Defendant’s postconviction motion, he makes a 

statement that he was “never given a hearing to access [sic] his 

competence, nor did counsel take the initiative to ask for one.” 

Additionally, Defendant attached a copy of the second competency report 

to his postconviction motion. Beyond this oblique statement and the 

attachment, Defendant’s postconviction motion never mentioned his 

competency as an issue nor sought any relief based on incompetency. We 

reject Defendant’s argument, raised for the first time on appeal, that his 
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postconviction motion properly raised the competency issue for the trial 

court’s consideration. We need look no further than the trial court’s own 

statement which acknowledged that neither the motion nor the parties 

raised Defendant’s competency as a ground for postconviction relief. 

In the alternative, the State argues that even if Defendant’s 

postconviction motion had properly pleaded that counsel was ineffective 

for failing to obtain a ruling on Defendant’s competency, granting the 

motion on that ground would still be error. We agree.

“[A] postconviction movant claiming ineffective assistance of counsel for 

failure to investigate or request a competency determination must 

establish ‘at least’ a reasonable probability that he or she would have been 

found incompetent.” Thompson, 88 So. 3d at 318. In Thompson, we

explained how a defendant can succeed on such a claim under Strickland

v. Washington, 466 U.S. 668 (1984).

To satisfy the deficiency prong based on counsel’s handling 

of a competency issue, the postconviction movant must allege 

specific facts showing that a reasonably competent attorney 

would have questioned competence to proceed. The standard 

for competency to proceed is set out in Dusky v. United States, 

362 U.S. 402, 80 S. Ct 788, 4 L. Ed. 2d 824 (1960), and 

codified in Florida Rule of Criminal Procedure 3.211. The 

question is “whether the defendant has sufficient present 

ability to consult with counsel with a reasonable degree of 

rational understanding and whether the defendant has a 

rational, as well as factual, understanding of the pending 

proceedings.” Fla. R. Crim. P. 3.211(a)(1). Conclusory 

allegations of incompetency are not enough to warrant an 

evidentiary hearing. See Atwater v. State, 788 So. 2d 223, 229 

(Fla. 2011). “[N]ot every manifestation of mental illness 

demonstrates incompetence to stand trial; rather, the 

evidence must indicate a present inability to assist counsel or 

understand the charges.” Card v. Singletary, 981 F.2d 481, 

487–88 (11th Cir. 1992). “[N]either low intelligence, mental 

deficiency, nor bizarre, volatile, and irrational behavior can be 

equated with mental competence to stand trial.” Medina, 59 

F.2d at 1107.

The prejudice standard that applies to a typical claim of 

ineffective assistance of counsel, whether a reasonable 

probability exists that the outcome of the proceeding would 

differ, is ill-suited to a claim of alleged incompetency. . . . The 
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focus of the prejudice inquiry is on actual prejudice, whether, 

because of counsel’s deficient performance, the defendant’s 

substantive due process right not to be tried while 

incompetent was violated. In order to establish prejudice . . . 

the postconviction movant must, as with a substantive 

incompetency claim, set forth clear and convicting 

circumstances that create a real, substantive and legitimate 

doubt as to the movant’s competency.

Id. at 319 (alternations in original).

The record reflects that defense counsel moved for a competency 

evaluation in 2014 after being advised by Defendant’s parents that 

Defendant had “mental problems” and had been on psychotropic medicine. 

The report generated from the evaluation found Defendant was competent 

to stand trial.

Defense counsel moved for a second competency evaluation in 2015 

after Defendant stated he did not “understand things” during a meeting 

between the two in jail. Like the first report, the report generated from 

this evaluation did not state Defendant was incompetent to proceed. 

Instead, the report described Defendant as guarded and irritable, but not 

suffering from mental health issues. Moreover, the report indicated 

Defendant suffered from drug use and depression, and that malingering

could not be ruled out. 

At the evidentiary hearing, defense counsel testified that nothing made 

him believe Defendant was incompetent to proceed. He explained he 

strategically did not present the second report to the trial court because 

he did not want to reveal that Defendant might be malingering.

On the record before us, Defendant did not satisfy the prejudice prong 

under Thompson because there were not “clear and convincing 

circumstances that create[d] a real, substantive and legitimate doubt as to 

the movant’s competency. . . . [A]ppellant’s history of drug abuse, 

depression, and aggressive, rebellious behavior do not raise a valid 

question as to his competency to stand trial.” Thompson, 88 So. 3d at 319, 

321; see also Bush v. Wainwright, 505 So. 2d 409, 411 (Fla. 1987) (“The 

numerous psychological problems now pointed out, such as learning

disabilities, a passive and dependent personality, and possible ‘diffuse 

organic brain damage’ do not, when taken together, sufficiently raise a 

valid question as to [the movant’s] competency to stand trial.”).
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Here, the trial court found counsel should have requested a competency 

hearing based on the second report that showed Defendant was guarded 

and irritable, but not suffering from mental health issues. The trial court 

did not find that Defendant set forth clear and convincing circumstances 

that created a real, substantive, and legitimate doubt as to his competency 

and, thus, suffered a violation of his substantive due process rights. See 

Thompson, 88 So. 3d at 319. Under this correct standard, the record does 

not establish that Defendant was prejudiced by counsel’s failure to present 

the competency reports to the trial court and request a hearing on 

Defendant’s competency.

Reversed with instructions to rule on the claim that was the subject of 

the evidentiary hearing.

LEVINE, C.J., and GROSS, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.