CARLOS D. COTTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D14-4936

_____________________________/

Opinion filed October 12, 2015.

An appeal from the Circuit Court for Bay County.

Michael C. Overstreet, Judge.

Nancy A. Daniels, Public Defender, and Colleen Dierdre Mullen, Assistant Public 

Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

KELSEY, J.

Appellant’s judgment and sentence for violation of probation are at issue in 

this appeal pursuant to Anders v. California, 386 U.S. 738 (1967). We reject without 

further comment the Fourth Amendment claim that Appellant asserted in his pro se 

brief, and would affirm because we find no other meritorious issues, but we must 

remand for further proceedings to establish Appellant’s competency. 
2

Upon the Court’s independent review of the record as required by Anders, we 

determined that the trial court ordered Appellant to undergo a competency 

evaluation and designated a doctor to perform the evaluation. However, the record 

does not contain the request for the evaluation, the doctor’s report, or any evidence 

that the trial court conducted a competency hearing or adjudicated Appellant 

competent before proceeding with the hearing and sentencing on the violation of 

probation charges. 

In light of the lack of record evidence establishing Appellant’s competency, 

we issued an order pursuant to State v. Causey, 503 So. 2d 321 (Fla. 1987), requiring 

the Assistant Public Defender to brief the competency issue and file a supplemental 

record containing any documents pertinent to that issue. The Assistant Public 

Defender responded that the record was devoid of a competency determination. The 

State replied that, although defense counsel requested a competency evaluation and 

the evaluation was performed, apparently resulting in a conclusion that Appellant 

was competent to proceed, the evaluation documents were not filed in this case. They 

were filed only in another case involving Appellant. There is no indication, however, 

that the trial court conducted a competency hearing or ruled on Appellant’s 

competency.

It is a due process violation to proceed against an incompetent criminal 

defendant. Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014); see also Ross v. 
3

State, 155 So. 3d 1259, 1259-60 (Fla. 1st DCA 2015) (“[T]he 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.”). If the trial court does not have sufficient grounds to believe 

that the defendant may lack competency, there is no obligation to hold a competency 

hearing. Monte v. State, 51 So. 3d 1196, 1202 (Fla. 4th DCA 2011). However, once

a trial court has reasonable grounds to question competency, the court “has no choice 

but to conduct a competency hearing.” Id. (citing Mairena v. State, 6 So. 3d 80, 85 

(Fla. 5th DCA 2009); Carrion v. State, 859 So. 2d 563, 565 (Fla. 5th DCA 

2003)); see Fla. R. Crim. P. 3.210(b), 3.212; Ross, 155 So. 3d at 1260; Maxwell v. 

State, 974 So. 2d at 505, 510-11 (Fla. 5th DCA 2008); Cochran v. State, 925 So. 2d 

370, 372-73 (Fla. 5th DCA 2006); see also Dougherty, 149 So. 3d at 677 (“‘[T]he 

framers of the rule . . . obviously did not regard lightly the necessity for a hearing’

by their use of the terms ‘shall’ and ‘immediately.’”) (quoting Fowler v. State, 255 

So. 2d 513, 515 (Fla. 1971)).

The State requests that we “supplement” the record in this case with the 

request for a competency evaluation and the report of the evaluation that were filed 

in another case involving Appellant. We decline this request because we are not at 

liberty to add to this record documents that were never filed with the lower tribunal 
4

in this case and that there is no evidence the trial court reviewed. See Thornber v. 

City of Fort Walton Beach, 534 So. 2d 754, 755 (Fla. 1st DCA 1988). The documents 

should have been filed directly in this record, or placed in this record pursuant to a 

request for judicial notice. The ability to supplement the record “is not intended to 

correct inadequacies in the record which result from a failure of a party to make a 

record below.” Id. Even if those two documents were in this record, however, we 

could not affirm this appeal until the record also reflected that the trial court 

conducted an appropriate competency hearing and adjudicated Appellant competent 

to proceed.

On remand, the parties shall promptly file with the lower tribunal, in the 

record of this case, all documents pertinent to the question of Appellant’s 

competency. If in fact the trial court previously considered those documents, 

conducted a competency hearing, and orally adjudicated Appellant competent, the 

trial court may enter an order of competency effective nunc pro tunc to the date of 

the previous oral adjudication. See Hunter v. State, 40 Fla. L. Weekly D1109, 2015 

WL 2186347, at *2 (Fla. 1st DCA May 12, 2015) (“[T]he trial court in this case did 

schedule and convene a competency hearing, and, on the record, did consider the 

two reports from the forensic mental health specialists . . . .”); Hampton v. State, 988 

So. 2d 103, 106 (Fla. 2d DCA 2008) (“Where, as here, a court has orally found a 

defendant competent but erroneously failed to enter the required written order, we 
5

have affirmed with directions to enter the order nunc pro tunc.”); Martinez v. State, 

851 So. 2d 832, 834-35 (Fla. 1st DCA 2003) (remanding for entry of competency 

order nunc pro tunc).

If, on the other hand, the trial court did not previously conduct a competency 

hearing, the court must do so before adjudicating Appellant’s competency. The 

transcript of such hearing and order adjudicating competency must be filed of record 

in this case to facilitate further appellate review, if any. The trial court may make a 

retroactive determination of competency with no change in Appellant’s judgment or 

sentence, if the evidence that existed prior to the hearing on Appellant’s charges 

supports a finding that he was competent at that time. Dougherty, 149 So. 3d at 678-

79 (discussing general rule that competency cannot be determined retroactively, but 

refusing to make bright-line rule because “a retroactive determination of competency 

is possible” even though “inherently difficult”). But see Maxwell, 974 So. 2d at 510-

11 (“Because a hearing to determine whether a criminal defendant was competent at 

the time of trial cannot be held retroactively . . . we must reverse [the appellant’s] 

sentences and remand for a new sentencing hearing.”). If the trial court cannot make 

a retroactive determination, it must properly adjudicate Appellant’s present 

competency and, if the court finds Appellant competent to proceed, conduct a new 

hearing on the violation of probation charges. The remedy is dependent “on the 
6

circumstances of each case.” Dougherty, 149 So. 3d at 678-79. We leave that 

decision to the trial court.

REVERSED and REMANDED with instructions.

THOMAS and MARSTILLER, JJ., CONCUR.