FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D16-2327

_____________________________

ROGER N. ROSIER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Wakulla County.

Dawn Caloca-Johnson, Judge.

September 5, 2018

PER CURIAM.

Roger N. Rosier was charged with resisting an officer with 

violence, but the trial court entered an order adjudicating him 

incompetent to proceed in October 2013. A report from Florida 

State Hospital subsequently deemed Rosier competent to stand 

trial and a hearing was set for July 9, 2014 (before the original 

trial judge), but was put off until August 14, 2014 (before a 

different trial judge). At the hearing, the parties stipulated to the 

evaluation report and Rosier’s counsel agreed that Rosier was 

competent and wanted to proceed to trial. A jury found him guilty 

of a lesser charge; he was sentenced to time served and released 

from custody.

Rosier challenges the adequacy of the hearing at which it was 

determined that his competency had been restored. A judicial 

hearing on the competency of a previously incompetent defendant 
2

cannot be based simply on stipulations and agreement of the 

lawyers.

In order to proceed against a defendant who has been 

adjudicated incompetent, the trial court first must hold a 

hearing to determine whether the defendant’s 

competency has been restored, review evidence from 

experts during the hearing, make an independent 

determination that the defendant’s competency has been 

restored, and enter a written order to that effect. 

Ross v. State, 155 So. 3d 1259, 1259 (Fla. 1st DCA 2015) (emphasis 

added); see also Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014) 

(“Accepting a stipulation improperly absolves the trial court from 

making an independent determination regarding a defendant’s 

competency to stand trial.”); Belizaire v. State, 188 So. 3d 933, 935 

(Fla. 1st DCA 2016) (finding the trial court’s acceptance of defense 

counsel’s “stipulation that because both experts found [defendant] 

competent, they could proceed with the trial” to be insufficient). An 

independent judicial determination is required because a person 

adjudicated to be incompetent is presumptively incompetent until 

an adjudication that his competency has been restored. Hunter v. 

State, 174 So. 3d 1011, 1014 (Fla. 1st DCA 2015) (noting that a 

criminal prosecution may not proceed against an incompetent 

defendant).

Here, the competency hearing was perfunctory: the trial court 

asked only whether Rosier felt well (“I’m good. . . . A lot better.”), 

and whether he was taking any medications or psychotropic drugs 

(“No ma’am.”). With that, Rosier—diagnosed with severe mental 

illness and deemed incompetent and a harm to himself and others 

a year earlier—was pronounced competent and a standard order 

was issued. As in Ross, the adequacy of the competency hearing is 

not met because there is no indication that sufficient judicial 

review was done to form an “independent determination that the 

defendant’s competency has been restored,” as required. This is 

particularly so when the prosecutor and public defender both 

mistakenly believed—and had agreed the day before the hearing 

(without Rosier present)—that a competency determination could 

be done by stipulation (the prosecutor suggesting they do it that 

day). The public defender, who preferred a hearing the next day 
3

with Rosier present, said the hearing would take only “thirty 

seconds” and the trial judge thought even less (“How long is it 

going to take, two seconds?), which compounds the appearance 

that the hearing was simply to ratify the stipulation versus 

independently reviewing and determining whether Rosier’s 

competency had been restored. And the evaluation report went 

unmentioned throughout the hearing, the trial judge neither 

discussing it nor stating she’d reviewed it. Cf. Hunter, 174 So. 3d 

at 1014-15 (where the trial court, “on the record, did consider the 

two reports from the forensic mental health specialists concluding 

that Hunter’s competency was restored.”). Her written order, 

which simply says the matter came before the court on the

psychologist’s report, doesn’t show that the judge actually 

reviewed or relied on it. Cf. Merriell v. State, 169 So. 3d 1287, 1288 

(Fla. 1st DCA 2015) (where “the court stated that it had reviewed 

the evaluation” and “relied on it as permitted by the rules” to find 

the defendant competent to proceed). Indeed, the order’s 

nondescript language could just as easily support the appearance 

that the court was ratifying the stipulation.

The remedy for the inadequate competency hearing is to 

conduct a nunc pro tunc competency evaluation; if one cannot be 

done, the defendant must receive a new trial. See Brooks v. State, 

180 So. 3d 1094, 1095 (Fla. 1st DCA 2015) (“[A] new trial is 

required only if the trial court is unable to conduct a nunc pro tunc 

evaluation of the defendant’s competency at the time of the 

original trial.”).

Finally, a discretionary fine and surcharge under section 

775.083, Florida Statutes, was imposed on Rosier, but not orally 

pronounced at sentencing. The State concedes that the fine and 

surcharge must be stricken, but on remand the “trial court may 

reimpose the fine and surcharge after providing notice to [the 

defendant] and following the proper procedure.” Nix v. State, 84 

So. 3d 424, 426 (Fla. 1st DCA 2012); see also Simmons v. State, 196 

So. 3d 1287, 1288 (Fla. 1st DCA 2016).

REVERSED and REMANDED for further proceedings.

MAKAR and BILBREY, JJ., concur; ROWE, J., concurring in part, 

dissenting in part with opinion.
4

_____________________________

Not final until disposition of any timely and 

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

9.331.

_____________________________

ROWE, J., concurring in part, dissenting in part.

I concur with the majority’s decision to strike the fine and 

surcharge imposed on Rosier without being orally pronounced. 

However, I dissent from the majority’s determination that Rosier’s 

competency hearing was inadequate.

The majority refers to the competency hearing conducted 

below as “perfunctory,” but it fails to explain what the trial court 

could have or should have done differently. The law is well-settled 

that a competency hearing requires the trial court to consider

expert testimony, either live or in written form, to make an 

independent determination of the defendant’s competency, and to 

enter a written order. Merriell v. State, 169 So. 3d 1287, 1288 (Fla. 

1st DCA 2015) (citing Dougherty v. State, 149 So. 3d 672, 677 (Fla. 

2014)). It is permissible for a trial court to base a competency 

decision solely on the basis of the written reports. Dougherty, 149 

So. 3d at 678. 

Here, the record established that a competency hearing was 

scheduled after the trial court received a report from the experts 

at Florida State Hospital finding Rosier competent to proceed. At 

the hearing, defense counsel and Rosier stipulated to the findings 

contained in the report. The trial court proceeded to conduct what 

was admittedly a limited colloquy of Rosier. But the colloquy was 

sufficient for the court to learn that Rosier believed that he was 

doing “a lot better,” that he was not taking any psychotropic 

medications, and that he believed he was okay. The trial court’s 

written order, which was entered on the same day as the hearing, 

provided: 

THIS CAUSE having come before the Court on the report 

of Leslie Dellenbarger, Psy.D. Senior Psychologist, 
5

Florida State Hospital of June 19, 2014, that the 

Defendant is competent to proceed, and the Court being 

fully advised in the premises, it is hereby

 ORDERED AND ADJUDGED:

1. The Defendant is currently competent to proceed to 

trial.

These facts demonstrate that the competency hearing was 

adequate. See Hunter v. State, 174 So. 3d 1011, 1014-15 (Fla. 1st 

DCA 2015) (affirming a finding of competency when a trial court 

affirmatively responded “Okay” to defense counsel’s 

representation during a status hearing that the defendant was 

competent where court had previously conducted a competency 

hearing and the court considered the expert reports); Merriell, 169 

So. 3d at 1288 (affirming a finding of competency made during a 

status hearing when the court stated that it had read the 

competency evaluations and specifically stated that it found the 

appellant competent to proceed). 

Under these facts, I would affirm the order finding Rosier 

competent to proceed because the trial court held a hearing, 

referenced the expert reports, and spoke to Rosier before arriving 

at its independent determination that Rosier was competent to 

proceed to trial.

_____________________________

Melissa Joy Ford, Assistant Conflict Counsel, Office of Criminal 

Conflict and Civil Regional Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, 

Assistant Attorney General, Tallahassee, for Appellee.