NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DAVID S. CRAMER, ) ) Appellant, ) ) v. ) Case No. 2D15-1434 ) STATE OF FLORIDA, ) ) Appellee. ) ________________________________ ) Opinion filed March 1, 2017.

A ppeal from the Circuit Court for Charlotte County; Amy R. Hawthorne, Judge. Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, A ssistant Attorney General, Tampa, for A ppellee.

KELLY, Judge.

ORDER RELINQUISHING JURISDICTION David Cramer appeals from his convictions for possession of a c ontrolled substance, possession of drug paraphernalia, and escape. He ar gues that he was- 2 - deprived of due process because the trial court failed to make an independent finding that he was competent to proceed to trial. We agree and relinq uish jurisdiction to the trial court for further proceedi ngs consistent with this order. Before trial, two court-appointed experts submitted written rep orts indicating Cramer was competent. At a hearing that followed, d efense counsel stated the experts found Cramer competent and "we are in a position th at we are proceeding toward the trial." The trial court made no oral findings regar ding Cramer's competency. The State offered to prepare a proposed competency order and al though the trial court apparently agreed, there is no competency order in the record. The rules of criminal procedure require the trial court to hold a hearing

when the court has reasonable grounds to question the defendant 's competency

. Dougherty v. State, 149 So. 3d 672, 677 (Fla. 2014) (citing Fla . R. Crim. P. 3.210(b)). A proper competency hearing generally requires testimony from cou rt-appointed expert witnesses, but where the parties and the trial court agree, the court "may decide the issue of competency on the basis of the written reports alone." Id. at 677-78 (quoting Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971)); accord Roman v. State, 163 So. 3d 749, 751 (Fla. 2d DCA 2015) ("If the parties agree, the trial c ourt can make its competency determination based solely on experts' reports."). However, the written reports are advisory only. Dougherty, 149 So. 3d at 678. The trial court is required to make an independent determination of competency. Id. Furtherm ore, the trial court is not permitted to accept stipulations to the ultimate issue of c ompetency, "even when all the experts have opined that the defendant is competent, as oth er evidence may- 3 - indicate incompetence." Zern v. State, 191 So. 3d 962, 964 (Fl a. 1st DCA 2016) (citing Dougherty, 149 So. 3d at 678).

The record shows the trial c ourt failed to conduct a proper com petency hearing. Instead, the trial court accepted a stipulation of co mpetence from defense counsel without making an independent determination that Cramer was competent to proceed to trial. See Dougherty , 149 So. 3d at 678. "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 erred in failing to make such a finding." Zern, 191 So. 3d at 965. The failure to hold a proper competency hearing or enter a writ ten competency order does not always require vacation of the defend ant's judgment and sentence. See Fowler, 255 So. 2d at 515. It is possible to re troactively determine competency provided it can be done in a manner that assures a d efendant due process of law. Dougherty, 149 So. 3d at 679 (citing Mason v. State, 4 89 So. 2d 734, 737 (Fla. 1986)). Accordingly, we relinquish jurisdiction to the trial c ourt for sixty days from the

date of this order and direct the trial court to conduct a new competency hearing following the procedure set forth by the supreme court in Fowle r.

CRENSHAW and BLAC K, JJ., Concur.