NOT FINAL UNTIL TIME EXPIRES 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. 

Appeal 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, 

Assistant Attorney General, Tampa, for 

Appellee. 

KELLY, Judge. 

ORDER RELINQUISHING JURISDICTION 

David Cramer appeals from his convictions for possession of a controlled 

substance, possession of drug paraphernalia, and escape. He argues that he was 
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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 relinquish jurisdiction to the 

trial court for further proceedings consistent with this order.

Before trial, two court-appointed experts submitted written reports 

indicating Cramer was competent. At a hearing that followed, defense counsel stated 

the experts found Cramer competent and "we are in a position that we are proceeding 

toward the trial." The trial court made no oral findings regarding Cramer's competency. 

The State offered to prepare a proposed competency order and although 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 court-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 court 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. Furthermore, the trial court is 

not permitted to accept stipulations to the ultimate issue of competency, "even when all 

the experts have opined that the defendant is competent, as other evidence may 
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indicate incompetence." Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA 2016) (citing 

Dougherty, 149 So. 3d at 678). 

The record shows the trial court failed to conduct a proper competency 

hearing. Instead, the trial court accepted a stipulation of competence 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 written 

competency order does not always require vacation of the defendant's judgment and 

sentence. See Fowler, 255 So. 2d at 515. It is possible to retroactively determine 

competency provided it can be done in a manner that assures a defendant due process 

of law. Dougherty, 149 So. 3d at 679 (citing Mason v. State, 489 So. 2d 734, 737 (Fla. 

1986)). Accordingly, we relinquish jurisdiction to the trial court 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 Fowler. 

CRENSHAW and BLACK, JJ., Concur.