DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JAMES A. MACHIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-2787

[January 9, 2019]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; James W. McCann, Judge; L.T. Case No. 

562015CF000434AXXXXX.

Carey Haughwout, Public Defender, and David John McPherrin, 

Assistant Public Defender, West Palm Beach, for appellant.

Ashley Brooke Moody, Attorney General, Tallahassee, and Richard 

Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

James Machin raises four issues in this appeal of his convictions, and 

we affirm three without comment. For his fourth issue, Machin argues the 

court erred when it failed to hold a hearing to evaluate his competency 

after appointing a competency expert. The State agrees that the record 

does not contain an order finding Machin competent to proceed and argues 

the “the proper course of action under the pertinent case law would be to 

remand this case to the trial court to make a nunc pro tunc competency 

evaluation.” We agree in part with the State’s recommendation, vacate 

Machin’s convictions, and remand for a nunc pro tunc competency 

determination if such a determination is possible. 

Before trial, Machin moved for the appointment of an expert to examine 

him for competency to proceed. See Fla. R. Crim. P. 3.210(b). The court 

granted the motion and appointed an expert who subsequently 

recommended the court find Machin competent to proceed. But the record 

does not include a transcript of an evidentiary hearing or a written order 

finding Machin competent to proceed.
2

The failure to hold a hearing or issue a written order finding Machin 

competent to proceed requires us to vacate Machin’s convictions because 

“competency requires strict adherence to the Florida Rules of Criminal 

Procedure 3.210–212.” Dortch v. State, 242 So. 3d 431, 432–33 (Fla. 4th 

DCA 2018) (en banc), review granted, No. SC18-681, 2018 WL 3635017 

(Fla. July 11, 2018) (citations omitted). “And, once a trial court has 

reasonable grounds to believe that a criminal defendant is not competent 

to proceed, it has no choice but to conduct a competency hearing.” Monte 

v. State, 51 So. 3d 1196, 1202 (Fla. 4th DCA 2011) (citations omitted). 

After finding reasonable grounds to question competency, a court must:

1) enter an order appointing experts and scheduling a 

competency hearing; 

2) hold an evidentiary hearing; and 

3) “issue a written order making findings as to the 

competency of the defendant as is specifically required by 

Rule 3.212(b).” 

Hawks v. State, 226 So. 3d 892, 894 (Fla. 4th DCA 2017). 

Generally, the failure to find a defendant competent after previously 

finding reasonable grounds to question his competency would entitle the 

defendant to a new trial. Id. (citation omitted). But a retroactive 

determination of competency may be possible in this case. See, e.g., id. at 

894–95. 

If the court determines a retroactive determination of competency is 

possible and finds Machin was competent to proceed, the court must

reinstate the convictions. See id. at 895. But if the court determines a 

retroactive competency determination is impossible, the court must 

adjudicate his current competency and, if found competent, proceed to a 

new trial. See id.; see also Dortch, 242 So. 3d at 433.

Vacated and remanded for further proceedings.

WARNER and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.