FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-3857

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DANIEL J. DAVIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Columbia County.

Paul S. Bryan, Judge.

September 18, 2024

PER CURIAM.

Daniel J. Davis appeals his conviction and sentence for lewd 

or lascivious molestation on a child under twelve years of age and 

lewd or lascivious molestation of a child over twelve years of age. 

We reverse and remand for a nunc pro tunc competency 

determination.

After defense counsel submitted an expert examination report 

concluding that Appellant was not competent to proceed to trial, 

the State submitted an examination report from a second expert 

concluding that Appellant was competent to proceed. The trial 

court then ordered the appointment of a third expert to evaluate 

Davis. See Fla. R. Crim. P. 3.210(b). However, the third report 

was not filed before trial. The trial court set a competency hearing, 
2

but the record lacks any transcript or other indication that a 

competency hearing was held. No written order finding Davis

competent to proceed is contained in the record. See Fla. R. Crim. 

P. 3.212(b). 

Upon the State’s concession of error and request for remand, 

we reverse and remand for a retroactive determination of 

competency, if possible. See Diamond v. State, 344 So. 3d 529, 530 

(Fla. 1st DCA 2022); Zern v. State, 191 So. 3d 962, 965 (Fla. 1st 

DCA 2016).∗ If the court finds that Davis was competent at the 

time of trial, it must enter a nunc pro tunc order memorializing 

that finding with no change in the judgment or sentence. Id. If a 

retroactive determination is impossible, or if the court finds that 

Davis was incompetent to proceed to trial, Davis will be entitled to 

a new trial if and when competent to proceed. Id.

Davis’ request that we certify a question to the Florida 

Supreme Court of great public importance relating to the number 

of jurors required is denied. See Phillips v. State, 316 So. 3d 779, 

786–87 (Fla. 1st DCA 2021).

REVERSED and REMANDED with instructions. 

ROBERTS, BILBREY, and M.K. THOMAS, JJ., concur.

∗ Recently, in Awolowo v. State, 49 Fla. L. Weekly D1458, 

D1560, 2024 WL 3352479, *4 (Fla. 1st DCA July 10, 2024) we 

found that a trial court’s failure to hold a competency hearing after 

ordering an expert examination of the defendant’s competency was 

not fundamental error where “there were no reasonable grounds 

to question [the defendant’s] competency in the first place.” See 

also Hicks v. State, 49 Fla. L. Weekly D1528c, 2024 WL 3432603 

(Fla. 1st DCA July 17, 2024). This case is distinguishable because 

the only reports filed in Awolowo and Hicks concluded the 

defendants were competent to proceed, while here there is an 

expert report finding that Davis is incompetent. 
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Not final until disposition of any timely and 

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

9.331.

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Jessica J. Yeary, Public Defender, and Victor D. Holder, Assistant 

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Darcy Townsend, Assistant 

Attorney General, Tallahassee, for Appellee.