retrospective hearing in Florida

2026But we have suggested the test may be satisfied when “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.” Mason, 489 So. 2d at 737 (quoting Martin, 583 F.2d at 1375 ); see also Mason v. State, 597 So. 2d 776 , 778 - 18 - (Fla. 1992).

2025Specifically, the Florida Supreme Court has held that “a nunc pro tunc competency evaluation [can] 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.’” Dougherty, 149 So. 3d at 679 (quoting Mason v. State, 489 So. 2d 734, 737 (Fla. 1986)).

2025Specifically, the Florida Supreme Court has held that “a nunc pro tunc competency evaluation [can] 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.’” Dougherty, 149 So. 3d at 679 (quoting Mason v. State, 489 So. 2d 734, 737 (Fla. 1986)).

2022Such a determination is “inherently difficult” but can be accomplished “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.’” Id. (quoting Mason v. State, 489 So. 2d 734, 737 (Fla. 1986)).

2019“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.” Id. at 679 . “[W]here the issue of competency was inadequately determined below, a retroactive determination of competency may be possible where there are enough expert and lay witnesses who examined or observed the defendant contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing.” Presley v. State, 199 So. 3d 1014, 1019 (Fla. 4th DCA 2016) (citing Doughe

2018See generally Presley, 199 So.3d at 1019 (explaining that a retroactive determination of competency is permissible if “there are enough expert and lay witnesses who examined or observed the defendant contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing”).

2026But we have suggested the test may be satisfied when “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.” Mason, 489 So. 2d at 737 (quoting Martin, 583 F.2d at 1375 ); see also Mason v. State, 597 So. 2d 776 , 778 - 18 - (Fla. 1992).

2014Nevertheless, 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.’” 489 So.2d at 737 (quoting Martin v. Estelle, 583 F.2d 1373, 1375 (5th Cir.1978)).

2017However, “a retroactive determination of competency may be possible where there are enough expert and lay witnesses who examined or observed the [juvenile] contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing,” A.L.Y. v. State, 212 So.3d 399, 404 (Fla. 4th DCA 2017) (citation omitted); see also Bain v. State, 211 So.3d 139, 140 (Fla. 4th DCA 2017).

2017See Dougherty, 149 So.3d at 679 (holding that a nunc pro tunc competency evaluation is possible if “a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial” are available for a retrospective hearing (internal quotation marks omitted) (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986))); see also A.L.Y., 212 So.3d at 404 .

2018However, "precedent provides that a retroactive determination of competency is possible when there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent *779 evidence at a retrospective hearing.' " Francis v. State , 1D16-5244, 248 So.3d 263 , 265, 2018 WL 2437112 , at *1 (Fla. 1st DCA May 31, 2018) (quoting Zern 191 So.3d at 965 ).

2018Although the trial court erred, we reject Appellant’s argument that this error necessarily requires a new trial in this case. “[P]recedent provides that ‘a retroactive determination of competency is possible’ when ‘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,’” Zern v. State, 191 So. 3d 962, 965 (Fla. 1st DCA 2016) (quoting Dougherty v. State, 149 So. 3d 672, 678-79 (Fla. 2014)), and we cannot say from our review of the record that a retroactive

2021See id. (holding that a retroactive competency determination "may be possible if 'there are a sufficient 3 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 Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014))).

2021See id. (holding that a retroactive competency determination "may be possible if 'there are a sufficient 3 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 Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014))).

2017“The chances of conducting a meaningful retrospective competency hearing decrease when experts must rely on a cold record.” Id. (quoting Jones v. State, 740 So.2d 520, 523 (Fla. 1999)).

2016"The chances of conducting a -2- meaningful retrospective competency hearing decrease when experts must rely on a cold record." Id. (quoting Jones v. State, 740 So. 2d 520, 523 (Fla. 1999)).

2017In some situations, however, competency may be determined retrospectively, although such after-the-fact determinations are “inherently difficult, even under the most favorable circumstances.” Id. at 679 ; see also Drope v. Missouri, 420 U.S. 162, 183 , 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975). “[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.’” Dougherty, 149 So.3d at 679 (emphasis added) (quot

2017In some situations, however, competency may be determined retrospectively, although such after-the-fact determinations are “inherently difficult, even under the most favorable circumstances.” Id. at 679 ; see also Drope v. Missouri, 420 U.S. 162, 183 , 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975). “[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.’” Dougherty, 149 So.3d at 679 (emphasis added) (quot

2016Id. at 679 (explaining 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”’) (quoting Mason v. State, 489 So.2d 734, 737 (Fla.1986)); see also Merriell v. State, 169 So.3d 1287 (Fla. 1st DCA 2015); Hunter v. State, 174 So.3d 1011 (Fla. 1st DCA 2015); Ross v. State, 155 So.3d 1259 (Fla. 1st DCA 2015).

2015Id. at 679 (explaining 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’”) (quoting Mason v. State, 489 So.2d 734, 737 (Fla.1986)); see also Merriell v. State, 169 So.3d 1287 (Fla. 1st DCA 2015); Hunter v. State, 174 So.3d 1011 (Fla. 1st DCA 2015); Ross v. State, 155 So.3d 1259 (Fla. 1st DCA 2015).

2018The trial court's focus, therefore, "must be on the defendant's mental state at the time of the proceeding in question, not at some time in the past, and stale mental health reports will not support an adjudication of incompetency." In re Commitment of Reilly , 970 So.2d 453 , 455 (Fla. 2d DCA 2007).

2018The trial court's focus, therefore, "must be on the defendant's mental state at the time of the proceeding in question, not at some time in the past, and stale mental health reports will not support an adjudication of incompetency." In re Commitment of Reilly , 970 So.2d 453 , 455 (Fla. 2d DCA 2007).

2026But we have suggested the test may be satisfied when “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.” Mason, 489 So. 2d at 737 (quoting Martin, 583 F.2d at 1375 ); see also Mason v. State, 597 So. 2d 776 , 778 - 18 - (Fla. 1992).

2026“Likewise, the recollections of non-experts (including the observations of the trial judge) who had the opportunity to interact with defendant during the relevant period may in some instances provide a sufficient base upon which a factfinder may rest his decision that even a belated determination will be accurate.” United States v. Makris, 535 F.2d 899, 905 (5th Cir. 1976).

2019CONCLUSION 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.

2018A nunc pro tunc evaluation of competency is permitted 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." Id. (quoting Mason v. State , 489 So.2d 734 , 737 (Fla. 1986) ); see also Brooks v. State , 180 So.3d 1094 , 1095 (Fla. 1st DCA 2015) (explaining that if there is evidence that existed previously that supports a finding that the defendant was competent at the time of trial, the court may make a retroactive determination of competency with no

2018Thus, on remand, if the court determines that Appellant was competent to proceed to trial, it shall enter a written order with findings.3 See Roman v. State, 163 So. 3d 749, 751 (Fla. 2d DCA 2015).

2017However, “a retroactive determination of competency may be possible where there are enough expert and lay witnesses who examined or observed the [juvenile] contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing,” A.L.Y. v. State, 212 So.3d 399, 404 (Fla. 4th DCA 2017) (citation omitted); see also Bain v. State, 211 So.3d 139, 140 (Fla. 4th DCA 2017).

2014In Mason , this Court noted that “[sjhould 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.” Id. at 737 ; see also Monte v. State, 51 So.3d 1196, 1203 (Fla. 4th DCA 2011).

2011See Brown v. State, 449 So.2d 417, 417 (Fla. 3d DCA 1984) (remanding for nunc pro tunc evaluation when original experts were available to testify).

1994Although the court acknowledged the inherent problems in conducting a retroactive competency evaluation in earlier cases such as Hill v. State, 473 So.2d 1253 (Fla. 1985), it also observed that a "`court may find that 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.'" Mason, 489 So.2d at 737 [quoting Martin v. Estelle, 583 F.2d 1373, 1375 (5th Cir.1978)]; see also Williams, 447 So.2d at 359 .