IN THE DISTRICT COURT OF APPEAL OF THE STATE O F FLORIDA FIFTH DISTRICT NOT FI NAL UNTIL TIME E XPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED RU KSHAN GOONEWARDENA , App ellant ,
v. Case No. 5D 21

- 1073 LT Case No. 2017

- CF

- 1056

- A STATE O F FLORIDA ,

Appellee

. ________________________________/ Opinion filed September 23, 2 022 Appeal from the Circuit Court for Seminole County , Debra S

. N elson , Judge. Lis a Jama Ramsey, of Ramsey Law, PLLC, L ake M ary, f

or A ppellant. Ashley Moody, Attorney General, Tallahassee, and Rebecca Roc k Mc Guigan, Assistant Attorney General, Day tona Beach, for Appellee. NARDELLA , J. Ruksha n Goonewarden a appeals his c onviction f or a ttempted m urder. Of t he c laims h e raises on a ppeal, o nly one has merit; n amely, t hat t he t rial2 court erred in concluding that he was competent to stand trial. Because the trial court did not make an independent determination that Goonewardena was competent to proceed to trial, we reverse and remand for the trial court to make a nunc pro tunc determination of competence if possible or to hold

a new trial if not. Goonewardena was charged with attempted murder after shooting the victim at an intersection during a fit of road rage. In the initial stages of the

case , defense counsel requested a psychological evaluation to determine whe ther Goonewardena was competent to proceed to trial based on his “trouble focusing” and “emotional limitations.” The trial court granted the request and ordered Goonewardena be evaluated by Psychological Affiliates, Inc. Dr. Kyle Goodwin evaluated Goonewardena and in his written report to the court stated that the evaluation was inconclusive and that “either a finding of competence or incompetence would be supported.” Due to the report’s inconclusiveness, the trial court ordered that Goonewardena undergo a second evaluation with a different psychological therapy office, Advanced Psychological Associates, Inc. Dr. Kathy Oses evaluated Goonewardena and concluded that he was mentally competent

. Dr. Oses submitted her report to the court, but apparently the parties did not3 bring the report to the court’s attention because the court did not hold a hearing or make a finding on Goonewardena’s competency

. In fact, Goonewardena’s competency was not addressed at all until more than a year after the second re port was filed, when defense counsel unexpectedly raised the issue to the prosecutor at the trial scheduling conference. The parties then requested a bench conference, and the following exchange took place

. S TATE : [Defense counsel] brought up that in the (Indiscernible) around here, it doesn’t appear that a formal finding of competency was ever made after an evaluation was done. C O URT : Okay. I don’t know when the evaluation was. DEF ENSE : Well, if you want, Your Honor, I can have it printed it out and we can address it [sic] jury selection before we begin. Your Honor could review it and — S TATE : It says he’s competent to proceed. I mean — C O URT : Well, if you just give me [sic] to look at

— you don’t have it. What date was the — DEF ENSE : It would be the older of the two. C O URT : 17

- 1056. DEF ENSE: I’m trying to get this one off your docket, Your Honor. CO URT: Yes, things do eventually happen, right? S TATE : I’m just knocking on wood just to —4 DE FENSE : I think it will get done. S TATE : Yeah. DE FENSE : Everything

— every single witness, every (Indiscernible) us, so that means we’re good. CO URT : You may not be able to open it up. And who

— who evaluated? S TATE : I believe it was the D efense at that time. C O URT : Was it a psychological — DEF ENSE : It was
— it was court ordered. We requested — C O URT : What

— oh, (Indiscernible) okay. DEF ENSE : And the term that is used, competent to — C O URT : Okay. DEF ENSE : — proceed. C O URT : All right. If

— we’ll go back on the record, take it off of the noise. S TATE : Thank you, Judge. ( End bench conference.) A fter the bench conference, the court made the following finding with respect to Goonewardena’s competency: C OURT : Okay. On Mr. Goonewardena, case number 17

- CF

- 1056, the parties have stipulated to the report filed by Kyle Godwin [sic] of the evaluation that was5 conducted on November 1 st , 201 9 , and that evaluation says that he is competent to stand trial so

— to proceed. So the Court will make a finding of competency to proceed. T he court did not enter a written order

. We review a trial court’s finding that a defendant is competent to stand trial for an abuse of discretion. See, e.g. , McCray v. State , 71 So. 3d 848, 862 (Fla. 2011). A trial court abuses its discretion when it does not independently determine that a defendant is competent to stand trial. See,
e.g. , Losada v. State , 260 So. 3d 1156, 1161 (Fla. 3d DCA 2018). Florida Rule of Criminal Procedure 3.210(b) explains how the t rial court should proceed when it has reasonable grounds to believe that a defendant may not be competent to proceed to trial

. (b) Motion for Examination . If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as need ed , prior to the date of the hearing. Attorneys for the state and the defendant may be present at any examination ordered by the court. I n this case, the trial court had reasonable grounds to believe that Goonewardena was not competent to proceed ; otherwise , the court would6 not have ordered Goonewardena to undergo a psychological evaluation on his m ental competence

. See Flaherty v. State , 266 So. 3d 1187, 1188 (Fla. 4th DCA 2019) (“When a trial court orders an evaluation, it suggests there are reasonable grounds to believe th e defendant is incompetent.”) ; Reynolds

v. S tate , 177 So. 3d 296, 298 (Fla. 1st DCA 2015 ) (“Here, the trial court apparently had reasonable grounds to believe that Appellant was not competent to proceed because the court appointed an expert to evaluate Appellant.”)

. Although o ur Supreme Court has emphasized that trial court s should follow the specific procedures outline d in Florida Rules of Criminal Procedure 3.210

– 3.212, which concern a criminal defendant’s competence to proceed in a case, it has also explained that th e hearing requirement of Rule 3.210(b) can be waived

. See Dougherty v. State , 149 So. 3d 672, 678 (Fla. 2014) (“ [W] here the parties and the judge agree, the trial c ourt may decide the issue of competency on the basis of the written reports alone.” (quoting Fowler v. State , 255 So. 2d 513 , 515 ( Fla. 1971) )); J ones v. State , 125 So. 3d 982, 984 (Fla. 2013) ( holding Rule 3.212 was satisfied when trial court based finding of competence on defense’s two expert competency evaluations without conducting competency hearing); Fowler , 255 So

. 3d at 515 (“Our decision [t hat the trial court erred by not setting a hearing to determine the7 defendant’s competence] is not to be construed as making the hearing requirement non -w aivable.”). What cannot be waived , however, is a defendant’s right to have the trial court make a n independent, legal determination that he is competent to proceed once his competency has been called into question. See, e.g. , Dougherty , 149 So. 3d at 676

– 78 (tracing duty to make independent determination of competency to defendant’s right to fair tria l); Zern v. State , 191 So. 3d 962, 965 (Fla. 1st DCA 2016) ( stating that “an independent competency finding is a due

process right”)

. Accordingly, a trial court commits reversible error when it does not make an independent determination that a defendant is competent to stand trial. See, e.g. , Zern , 191 So. 3d at 965 (“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 fundamental ly err[s] in failing t o make such a finding.”). The trial court’s duty to make an independent determination is not absolved when the parties stipulate to a defendant’s competence and the psychological evaluations conclude that he is. See D ougherty , 149 So. 3d at 678 (“Even in a situation where all the experts opine that a defendant is competent, the trial court could presumably disagree based on other evidence such as the defendant’s courtroom8 behavior or attorney representations.”); Jones , 125 So. 3d at 984 (holding parties cannot stipulate that a defendant is competent)

. In this case, the trial court did not make an independent determination that Goonewardena was competent to proceed to trial. In its oral ruling, the trial court based its find ing of competency on only two things: (1) the stipulation of the parties ; and (2) the ( mistaken ) belief that the report of Goo newardena’s first evaluation concluded that he was competent

. The record does not demonstrate that the trial court reviewed the t wo reports it ordered at the time it ruled or in anticipation of ruling

. This is made clear by the trial court’s mischaracterization of the first report, which mimics what counsel told the trial court. Further , the trial court ma d e no mention of the

seco nd report, and there is no other evidence in the record to suggest it was ever reviewed. Also missing from the record are any observations by the trial court which would suggest that the trial court made an independent determination

. When a trial court fails to make an independent determination that a defendant is competent for trial after his competency has been called into question, the proper remedy is usually to reverse and remand for a new trial. Dougherty , 149 So. 3d at 678

– 79. However, our Supreme Court has recognized that the trial court need not hold a new trial if it can retroactively9 determine a defendant’s competency. Id . at 679. Such a determination is “inherently difficult” but can be accomplished “where ‘ there are a s ufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing. ’” Id . (quoting Mason v. State , 489 So. 2d 734, 737 (Fla. 1986)). Consequently , when this Court has reversed a trial court for making an erroneous finding of competence, we h ave instructed the lower court to conduct a nunc pro tunc determination of competence if possible and to hold a new trial if not. Yancy v. State , 280 So. 3d 1112, 1113 (Fla. 5th DCA 2019); Bynum v. State , 247 So. 3d 601, 604 (Fla. 5th D C A 2018). Therefore, because the trial court in this case abused its discretion by not making an independent determination that Goonewardena was competent to proceed to trial, we reverse and remand for a nunc pro tunc determination of competence. To the extent such a determination cannot be made, we remand for a new trial. RE VERSED and REMANDED

. COHEN and WOZNIAK , JJ., concur.