FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-4953

_____________________________

A.D.H., A Child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Leon County.

Terry Lewis, Judge.

September 18, 2019

RAY, C.J.

A.D.H. challenges his adjudication of delinquency for 

tampering with an electronic monitor. He contends the trial court 

erred in failing to hold a competency hearing and render a 

competency determination after the court had reasonable grounds 

to believe he was incompetent to proceed. Accepting the State’s 

confession of error, we reverse and remand for further proceedings. 

During the delinquency proceedings below, defense counsel 

asked the court for an expert evaluation to determine whether the 

child was competent to proceed. The court granted the motion and 

scheduled a competency hearing in accordance with section 985.19, 

Florida Statutes, and Florida Rule of Juvenile Procedure 

8.095(a)(1). Yet nothing in the record indicates that a competency 
2

hearing took place or that a competency determination was made

by the court. The court ultimately adjudicated the child delinquent 

and committed him to a non-secure residential program with nine 

months of post-commitment probation. After the disposition 

hearing, the expert’s competency evaluation was filed with the 

court.

Once a court has reasonable grounds to question a defendant’s 

competency, it must hold a competency hearing and make an 

independent determination on whether the defendant is 

competent to proceed. Sheheane v. State, 228 So. 3d 1178, 1180 

(Fla. 1st DCA 2017). “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 

err[s] in failing to make such a finding.” Zern v. State, 191 So. 3d 

962, 965 (Fla. 1st DCA 2016); see also A.L.Y. v. State, 212 So. 3d 

399, 402 (Fla. 4th DCA 2017) (noting that “the procedural rules 

governing competency determinations in juvenile cases parallel 

the procedural rules in the adult criminal cases”).

In its order for expert evaluation of A.D.H, the court found 

that reasonable grounds existed to believe that the child may be 

incompetent to proceed. It was thus required to hold a hearing on 

the issue and make an independent determination on the child’s 

mental condition. See § 985.19(1)(b), Fla. Stat.; Fla. R. Juv. P. 

8.095(a)(2); see also B.E. v. State, 253 So. 3d 772, 773 (Fla. 1st DCA 

2018). Because the court failed to do either, we must reverse.

On remand, the court may make a retroactive determination 

of competency if it is possible to do so in a manner that comports 

with due process. B.E., 253 So. 3d at 773. If the court finds that the 

child was competent at the time of the hearing, it must enter a 

nunc pro tunc order with no change in the adjudication of 

delinquency. Id. But if a retroactive determination of competency 

is not appropriate or the court determines that the child was not 

competent at the time of the hearing, the court must conduct a new 

hearing once it determines that the child is competent to proceed.

Id.

REVERSED and REMANDED.

WOLF and M.K. THOMAS, JJ., concur.
3

_____________________________

Not final until disposition of any timely and 

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

9.331.

_____________________________

Andy Thomas, Public Defender, and Jasmine Russell, Assistant 

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross, 

Assistant Attorney General, Tallahassee, for Appellee.