Third District Court of Appeal
State of Florida
Opinion filed February 20, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2873
Lower Tribunal No. 12-17899
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David Auerbach,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ellen Venzer and
Marisa Tinkler-Mendez, Judges.
Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General, and Rachel Kamoutsas, Assistant Attorney
General, for appellee.
Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
EMAS, C.J.
INTRODUCTION
David Auerbach appeals from a judgment and sentence for one count of
second-degree murder (of his father) and two counts of aggravated elderly abuse
(upon his mother and father). On appeal, Auerbach contends the trial court erred in
failing to make an independent determination that he was competent to proceed to
trial. The State concedes the trial court committed error and further concedes
Auerbach is entitled to relief. However, the parties disagree over the nature of that
relief: Auerbach contends he is entitled to a new trial (if and when he is properly
determined competent); the State contends we should remand, not for a new trial,
but for a nunc pro tunc competency determination. For the reasons that follow, we
reverse and remand for a new trial.1
FACTS AND PROCEDURAL BACKGROUND
This case arises from a physical altercation between David Auerbach and his
elderly parents. Weeks after the altercation, Auerbach’s father died, and Auerbach
was charged with second-degree murder and two counts of aggravated abuse on an
elderly person.
1
Auerbach also asserts on appeal that: 1) the trial court failed to conduct a proper
Faretta inquiry before permitting Auerbach to proceed pro se; and 2) his conviction
for aggravated abuse upon his father should be vacated on double jeopardy grounds.
Because we are reversing and remanding for a new trial on the competency issue,
(and because Auerbach is represented by counsel) these two claims are moot.
2
Following his arrest in July 2012, the trial court ordered psychological
evaluations of Auerbach. Three doctors performed evaluations and submitted
written reports on their findings. On January 9, 2013, the trial court held a hearing
at which it was advised that two doctors agreed Auerbach was incompetent and the
third doctor found Auerbach competent to proceed.
The matter was set for a formal competency hearing, which the trial court held
on April 18, 2013. The three doctors’ written reports were in the court file. No
testimony was taken at the competency hearing. The State and defense simply
stipulated to the contents of the doctors’ reports and the judge thereafter concluded:
So, we’ve [sic] going to have a stipulation to incompetency in light of
the reports by the doctors; that they would come in and testify
consistent with their reports.
This oral finding of incompetency was followed by a written order
adjudicating Auerbach incompetent to proceed, and Auerbach was committed to a
forensic hospital.
Several months later, Auerbach returned from the hospital and was
reevaluated by two of the doctors from his original competency evaluations. These
evaluations were performed, and written reports prepared, in July 2013. One doctor
opined Auerbach was competent, while the other doctor found him incompetent to
proceed. A third doctor was appointed, and found Auerbach competent to proceed.
The three doctors filed their written reports, and a final competency hearing was held
3
on October 15, 2013. During the hearing, both parties stipulated that (1) the doctors
would have testified consistently with their reports; and (2) Auerbach was competent
to proceed. Judge Venzer found Auerbach competent to proceed to trial “based upon
the stipulation of the parties.” No written order was rendered adjudicating Auerbach
competent.
In May 2015, Judge Venzer sua sponte disqualified herself from the case.
Judge Tinkler-Mendez was assigned as the successor judge, and presided over the
trial, which was held in June 2016, thirty-two months after the October 2013
competency hearing. 2 The jury found Auerbach guilty on all counts.
ANALYSIS
“The procedure for determining a defendant's competency is governed by
Florida Rules of Criminal Procedure 3.210 through 3.215.” Hawks v. State, 226 So.
3d 892, 893 (Fla. 4th DCA 2017). We review the lower court's judgment and its
compliance with these rules de novo.
Id.
As a general rule, an accused “is presumed sane when he enters the
courtroom.” Moreno v. State, 232 So. 3d 1133, 1136 (Fla. 3d DCA 2017). However,
once a trial court finds a defendant incompetent, the defendant is “presumed to
remain incompetent until adjudicated competent to proceed by a court.” Dougherty
2
Review of the record shows that no additional competency evaluation was
performed before or during trial.
4
v. State, 149 So. 3d 672, 676 (Fla. 2014) (quotation omitted). A defendant who is
adjudicated incompetent “may be committed for treatment to restore his competency
to proceed.”
Id. at 677. That is precisely what happened here—Auerbach was found
incompetent following a hearing, committed to a forensic hospital, and (several
months later) reevaluated to determine whether he had been restored to competency.
When notified that a defendant’s competency has been restored, a trial court
must hold a hearing to make such a determination. Id. at 676. The hearing generally
requires presentation of live testimony from experts, an independent determination
of competency by the trial court, and entry of an order.
Id.
In lieu of live testimony, however, the parties can stipulate that the expert
witnesses, if called to testify at the hearing, would testify consistent with their
written reports. Id. Importantly, the parties are not “stipulating” to competency. It
remains for the trial court to make an independent legal determination of the
defendant’s competency in consideration of “the expert testimony or reports and
other relevant factors.” Moulton v. State,
230 So. 3d 934, 937 (Fla. 2d DCA 2017)
(quoting Dougherty, 146 So. 3d at 667). Indeed, this court recently elaborated on
this point in Hernandez v. State,
250 So. 3d 183, 186-87 (Fla. 3d DCA 2018):
There is nothing in the record to suggest that the trial court reviewed or
considered the expert's report, or made an independent assessment or
finding of Hernandez's competency. The record (and the single excerpt
above) indicates instead that the trial court found Hernandez competent
based solely upon the parties' stipulation. However, such a stipulation,
while not unusual, is also not sufficient by itself for a valid
5
determination of competency. In other words, a stipulation that the
expert, if called as a witness, would testify consistently with the report,
is not a stipulation to competency. Indeed, the parties cannot “stipulate”
to a defendant's competency (or incompetence), as it is an independent
legal determination for the trial court to make after consideration of the
expert testimony or reports, and other relevant factors. Dougherty v.
State, 149 So.3d 672, 678 (Fla. 2014); Shakes v. State,
185 So.3d 679,
681 (Fla. 2d DCA 2016). The trial court's acknowledgment and
acceptance of the parties' stipulation was insufficient to satisfy the
requirements of rule 3.212 and principles of due process. More was
required:
At the competency hearing, the court must make its own
independent finding of competence or incompetence. If
the parties and the court agree, the court may decide the
issue based on the experts' reports without receiving any
testimony. However, the court must regard the reports as
advisory only. Further the court is not permitted to merely
accept a stipulation of competence. In fact, acceptance of
a stipulation is improper even when all the experts have
opined that the defendant is competent, as other evidence
may indicate incompetence.
(Quotations omitted).
The State properly and commendably concedes that the trial court failed to
make an independent determination of Auerbach’s competency, and that reversal is
required. Therefore, the only remaining issue is the proper remedy on remand.
At the commencement of this appeal, both parties agreed the remedy on
remand should be for a hearing on whether a retroactive competency determination
is possible, specifically whether the trial court can discern from the record whether
Auerbach was competent at the time of his June 2016 trial. The availability of such
6
a remedy—under the appropriate circumstances—was recognized by the Florida
Supreme Court in Dougherty, 149 So. 3d at 678-79:
Generally, the remedy for a trial court's failure to conduct
a proper competency hearing is for the defendant to
receive a new trial, if deemed competent to proceed on
remand. A new trial is not always necessary where the
issue of competency was inadequately determined prior to
trial; a retroactive determination of competency is
possible. However, as we have previously noted, the
United States Supreme Court has cautioned that
determining competency to stand trial retrospectively is
inherently difficult, even under the most favorable
circumstances. The chances of conducting a meaningful
retrospective competency hearing decrease when experts
must rely on a cold record. Nevertheless, in Mason, this
Court held that a nunc pro tunc competency evaluation
could be done where there are a sufficient number of
expert and lay witnesses who have examined or observed
the defendant contemporaneous with trial available to
offer pertinent evidence at a retrospective hearing. In
Mason, this Court noted that [s]hould the trial court find,
for whatever reason, that an evaluation of Mason's
competency at the time of the original trial cannot be
conducted in such a manner as to assure Mason due
process of law, the court must so rule and grant a new trial.
Thus, the remedy for a trial court's failure to follow the
procedures discussed above depends on the circumstances
of each case.
(Emphasis added, internal citations and quotations omitted). The parties also agreed
that, should the trial court be unable to make such a determination, a new trial is
required once the trial court formally determines Auerbach is competent to proceed.
However, the parties’ agreement on the appropriate remedy was altered by
this court’s opinion in Losada v. State, 44 Fla. L. Weekly D69 (Fla. 3d DCA Dec.
7
26, 2018), issued after oral argument was held in this case. Based on the substantial
similarity between this case and Losada, we ordered supplemental briefing on
whether our decision in Losada requires us to reverse and remand for a new trial, or
whether the trial court may still be permitted an opportunity to make a retroactive
competency determination. Having considered the supplemental briefing, and upon
our review of the entire record, we agree with Auerbach that Losada is
indistinguishable in all relevant circumstances from the instant case, and that we are
compelled to reverse and remand for a new trial.
Losada was charged in both Miami and Palm Beach with numerous counts of
possession and transmission of child pornography. Id. at *1. In October 2012, the
Palm Beach Circuit Court found Losada incompetent to proceed based on an expert
report. The Miami-Dade Circuit Court relied on the same report to adjudicate
Losada incompetent to stand trial.
In January 2014, after the Palm Beach Circuit Court found Losada was
restored to competency, Losada was tried, found guilty, and sentenced.
Losada was then transferred to Miami-Dade for trial on his separate charges
pending there. The Miami-Dade Circuit Court, having previously adjudicated
Losada incompetent, appointed two doctors to examine Losada and evaluate whether
he was now competent to proceed. Each doctor opined, in written reports prepared
8
in late October and early November 2013, that Losada was competent to proceed to
trial.
In December 2013, with the parties in possession of the doctors’ reports, the
trial court held a hearing at which Losada’s attorney stated:
[Losada has] been evaluated by two different doctors. At
this time both finding that he is competent. I will stipulate
to the reports.
Id. at *2. Based on counsel’s stipulation, the trial court found Losada competent to
proceed to trial. No written order on the competency determination was rendered,
nor did the trial court indicate it had reviewed the reports or made an independent
determination of competency.
Twenty-eight months later, in April 2016, the case proceeded to trial where
Losada was found guilty and sentenced.
Like Auerbach, Losada appealed his conviction and sentence arguing, in part,
that the trial court failed to make an independent determination of his competency
to stand trial. In Losada, we recognized that “there are situations where a new trial
is unnecessary if the trial court can make a retrospective competence determination
on remand, based on evidence available at the time of the trial.” Id. at *4 (citing
Dougherty, 149 So. 3d at 679). Nevertheless, we rejected such a remedy, remanding
instead for a new trial and concluding that, under these facts, a nunc pro tunc
9
competency hearing “would not ensure that Losada’s constitutional due process
rights are met.” Id. at *7.
Most significant to our analysis in Losada was the twenty-eight month gap in
time between Losada’s competency hearing (December 2013) and his trial (April
2016). “The competency hearing,” we explained, “was not contemporaneous to
trial.” Id. at *4 (quoting Dougherty, 149 So. 3d at 679). We also noted that the only
evidence available to the trial court in making a nunc pro tunc competency
determination would be the doctors’ reports issued three years before trial. And like
the competency hearing itself, those doctors’ reports were not “contemporaneous
with the trial” and, therefore, could not appropriately form the basis of a retroactive
competency determination.3
Id. at *5 (quoting Dougherty,
149 So. 3d at 679).
The case before us presents circumstances strikingly similar to those in
Losada:
• In the instant case, as in Losada, Auerbach was initially found
incompetent to proceed, and later found competent following an inadequate
competency hearing.
3
Lastly, we suggested that the reports’ contents showed the doctors “were unaware
of Losada’s medical history or behavioral difficulties” from the original Palm Beach,
competency determination. This factor is not pertinent to the facts in this case.
10
• In the instant case, as in Losada, the trial court failed to make an
independent competency determination, relying instead on a “stipulation” of
competency by the parties.
• In the instant case, as in Losada, the trial court failed to render a written
order on this determination.
• In the instant case, as in Losada, the doctors’ evaluations were
conducted, and reports prepared, nearly three years before trial; these medical
experts did not “examine[] or observe[]” Auerbach “contemporaneous with the
trial,” meaning any nunc pro tunc hearing would require the trial court to “rely on a
cold record.” Id. at *4 (quoting Dougherty,
149 So. 3d at 679).
• Finally, and most significantly, in the instant case, as in Losada, the ill-
fated competency hearing was held years before the trial— a gap of twenty-eight
months in Losada and a gap of thirty-two months in the instant case.
CONCLUSION
As the Florida Supreme Court reaffirmed in Dougherty, 149 So. 3d at 679, a
nunc pro tunc competency determination is appropriate where “there are a sufficient
number of expert and lay witnesses who have examined or observed the defendant
contemporaneous with trial available to offer pertinent evidence at a retrospective
hearing.” (quoting Mason, 489 So. 2d at 737).
11
In the instant case, as in Losada, a nunc pro tunc competency determination
is neither appropriate nor possible upon the record before us. We can find no
principled basis upon which to distinguish Losada or to justify a remand for a nunc
pro tunc competency determination. We therefore reverse and remand for a new
trial following the trial court’s proper determination that Auerbach has been restored
to competency.
12
