DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BRYAN PATRICK AUGUSTIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-685

[June 13, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Marni A. Bryson, Judge; L.T. Case No. 50-2014-CF0011655-AXXX-MB.

Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special 

Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina 

Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for 

appellee.

PER CURIAM.

Prior to trial, defense counsel moved to appoint experts to evaluate the 

defendant for competency to proceed, indicating that the defendant 

appeared to suffer from mental illness. The motion expressed counsel’s 

concerns regarding the defendant’s ability to disclose facts pertinent to the 

proceedings and his ability to testify. The circuit court subsequently 

reassigned the case to the mental health specialty division, noting that the 

defendant’s competency to proceed was an “ongoing issue.”

After the case was transferred, the presiding judge appointed two 

experts to examine the defendant. It appears that the mental health 

evaluations were completed as ordered. Thereafter, the presiding judge 

entered an order reassigning the case back to the criminal division “upon 

agreement of the parties,” noting, “Defense Counsel notified all parties that 

they are formally moving to withdraw their motion to evaluate the 

Defendant for competency to proceed.” There is no written motion to 

withdraw in the record. Also, it does not appear that the trial court ever 
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held a competency hearing or issued a written order regarding the 

defendant’s competency to proceed. 

“A trial court has the duty to make an independent determination of a 

criminal defendant’s competency to proceed.” Charles v. State, 223 So. 3d 

318, 329 (Fla. 4th DCA 2017). “A defendant cannot stipulate to the 

ultimate issue of competency, because ‘[a]ccepting a stipulation 

improperly absolves the trial court from making an independent 

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

(quoting Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014)). “Although 

the trial court, when the parties agree, may decide the issue of competency 

on the basis of 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.” 

Dougherty, 149 So. 3d at 679; see also Fla. R. Crim. P. 3.212(b) (“The court 

shall first consider the issue of the defendant’s competence to proceed. If 

the court finds the defendant competent to proceed, the court shall enter 

its order so finding and shall proceed.”).

From this record, we cannot tell whether a competency hearing was 

ever held, whether defense counsel stipulated to competency, and whether 

the trial court found the defendant competent based on the reports. What 

is clear is that there is no written order regarding the defendant’s 

competency in the record.

Once the trial court ordered the mental health evaluations, and those 

evaluations were completed, the court was required to move forward with 

the competency hearing. See Dortch v. State, ––– So.3d ––––, 2018 WL 

1617082, at *1 (Fla. 4th DCA Apr. 4, 2018) (“Once a trial court has 

reasonable grounds to believe the defendant is incompetent and orders an 

examination, it must hold a hearing, and it must enter a written order on 

the issue. Failure to do so is fundamental error and requires reversal.”)

(internal citation omitted). We therefore reverse and remand with 

instructions for the trial court to determine the defendant’s competency 

nunc pro tunc, if possible, and if not, the judgment and sentence should 

be vacated and the case set for trial. See Dougherty, 149 So. 3d at 679.

We briefly discuss two remaining issues. The trial court erred in giving 

the heat of passion instruction where there was no evidence to support it. 

See, e.g., Douglas v. State, 652 So. 2d 887 (Fla. 4th DCA 1995) (marital 

squabbles do not constitute reasonable provocation required for the heat 

of passion defense); Daley v. State, 957 So. 2d 17, 18 (Fla. 4th DCA 2007)

(an argument alone will not support the heat of passion defense). We find 

the error to be harmless. The defendant was convicted of the lesser 

included offense of second degree murder, so we are hard-pressed to see 
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how the defendant was prejudiced by the inclusion of the heat of passion 

instruction. The state argued that this was a case of premeditated murder 

and told the jury “this is not a heat of passion case.” Defense counsel 

argued that the stabbing was an “impulsive act done by a teenager in a 

heated moment with no real motive,” and “not an act done upon reflection.” 

If the giving of the instruction muddied the waters, it was to the 

defendant’s benefit. However, if there is a retrial in this case, the 

instruction should not be given.

Finally, the defendant’s equivocal conduct was insufficient to invoke 

his right to remain silent.

Reversed and remanded.

GERBER, C.J., GROSS and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.