County Criminal Court: CRIMINAL LAW-Competency-  once the judge is presented with reasonable grounds to believe a defendant may not have sufficient present ability to consult with his attorney and aid in the preparation of his defense with a reasonable degree of understanding, he must order a hearing and examination pursuant to Rule 3.210- an objective evaluation of the facts presented to the trial court establishes that the trial court had more than reasonable grounds to believe appellant may have been incompetent to stand trial-trial court had an independent responsibility, on its own motion, to make an inquiry into and hold a hearing on the competency of the defendant when there is evidence that raises questions as to that competency -Judgment reversed. Moon v. State, No. 03-4511CFAES (Fla. 6th Cir. App. Ct. October 25, 2004).

 

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

 

 

KEVIN MOON

           

            Appellant

vs.                                                                    Appeal No. CRC 03-4511 CFAES

                                                                        County Criminal No. CTC 02-6447MMAES

 

STATE OF FLORIDA

 

            Appellee.

___________________/

 

Opinion filed October ___, 2004.

 

Appeal from Honorable Robert P.Cole

 

Joy k. Goodyear, Esquire

Assistant Public Defender

Attorney for Appellant

 

C. Marie King, Esquire

Assistant State Attorney

Attorney for Appellee

 

ORDER AND OPINION

 

            This matter came before the court on defendant Kevin Moon's appeal from a judgment and sentence entered by the Pasco County Court.  This court has jurisdiction. Fla. R. App. P. 9.030(c).  

            Mr. Moon was charged with criminal mischief  on October 16, 2002  for damaging a power pole.  Moon pled not guilty.  After a jury trial, Moon was found guilty of the charges.  On appeal, Moon raises two issues:  (1) whether the trial court erred in excluding evidence that the power pole was on his property; and (2) whether failure to make inquiry into appellant's competency deprived appellant of his constitutional right to a fair trial.  After reviewing the briefs and the record, and being otherwise fully advised, this Court affirms the decision of the trial court as to the first issue, and reverses the decision of the trial court as to the second issue.

                                                                        I.

             In addressing the first issue, the Court finds that the trial court did not error in excluding evidence that the power pole was on Moon's property.  Admissibility of evidence is within the sound discretion of the trial court and will not be reversed absent abuse of discretion.  State v. Lewis, 838 So. 2d 1102, 1121 (Fla. 2002);  Heath v. State, 648 So.2d 660, 664 (Fla.1994).  The test of admissibility is relevancy.  Johnson v. State,  130 So.2d 599 (Fla.1961).  To be admissible, evidence must be both logically and legally relevant.  Wolf v. State, 72 Fla. 572, 73 So. 740 (1917).  In this case, the trial judge determined that the evidence was not relevant since defendant's claimed right to destroy a power pole because it was on his property was not a valid defense to the crime of criminal mischief.   This Court does not find that the trial court abused its discretion.  Lewis, 838 So. 2d 1102.

II.

            In addressing the second issue, the Court finds that the trial court did error in not holding a competency hearing.   A review of the record reveals that Moon made several statements which should have put the trial court on notice that Moon may not have been competent.  

            Fla.R.Crim.P. 3.210 governs the procedure for raising the issue of competence to

 

stand trial. Rule 3.210(b) provides:
                       

            If before or during the trial the court of its own motion, or upon motion of                                  counsel for the defendant or for the State, has reasonable ground to believe                  that the defendant is not mentally competent to stand trial, the court shall                                immediately enter its order setting a time for a hearing to determine the                           defendant's mental condition ... and shall order the defendant to be                                            examined by no more than three nor fewer than two experts prior to the                                     date of said hearing.
           

            The test for competence to stand trial is not whether a defendant is insane, but "whether a defendant has sufficient present ability to consult with and aid his attorney in the preparation of a defense with a reasonable degree of understanding," Hardy v. State, 716 So. 2d 761 (Fla. 1998).  More importantly, however, in determining whether to call for a hearing pursuant to Rule 3.210(b), the test is "whether there is reasonable ground to believe the defendant may be incompetent, not whether he is incompetent," Scott v. State, 420 So.2d 595 (Fla.1982) citing Walker v. State, 384 So.2d 730 (Fla. 4th  DCA 1980) (emphasis in original); Boggs v. State, 375 So.2d 604 (Fla. 2d DCA 1979). Once the judge is presented with reasonable grounds to believe a defendant may not have sufficient present ability to consult with his attorney and aid in the preparation of his defense with a reasonable degree of understanding, he must order a hearing and examination pursuant to Rule 3.210. Id.   Thus, the question is whether the trial court had information that created reasonable grounds to believe that Moon might be incompetent.   Brockman v. State,  852 So.2d 330, 334 (Fla. 2d DCA  2003). 

            In this case, during opening statement, the prosecutor stated "As [Deputy Jones] approached Mr. Moon,  Mr. Moon said, "You need to leave my property right now. . . This is a tax free land, it belongs to the King of England and you need to leave."  (T. 40). 

            During the trial, Moon testified as follows:

            Q: And was this pole completely cut down?

           

            A.  No I cut it about halfway through.  I was working on it.  I was supposed to cut        it all the way down.  And I was supposed to do it while a police officer was there.              I'm an undercover agent.  I have two identities, one to live by and one to rule by.  You also heard him say something earlier about "that land belonging to the King             of England"-

           

            THE COURT: Counsel--

           

            A. I am the King of England.

           

            THE COURT: --take control of your client and ask questions, please.

            Mr. Moon be responsive to the questions that Mr. Spiegel asks, please,            sir.

 

            A.  The reason Judge Cole don't want the deeds brought into court is because he           thinks they float .  They don't have to come down on the property.

           

            Q: Mr. Moon, I'm going to ask the questions here, okay?

            Mr. Moon, was there any maliciousness in your taking down this pole?

           

            A: No, sir.  It was something I had to do, or supposed to do to stop things to    come.

 

(T99-101).

            In the present case, Moon exhibited unusual behavior that raised questions as to his competency.  As the record reveals, he stated that he was the King of England, that he was undercover agent with two identities, and that he cut down the pole 'to stop things to come.'   An objective evaluation of the facts presented to the trial court establishes that the trial court had more than reasonable grounds to believe that Moon may have been incompetent to stand trial.  Brockman at  334.   Thus, the trial court had an independent responsibility, "on its own motion, to make an inquiry into and hold a hearing on the competency of the defendant when there is evidence that raises questions as to that competency." Hill v. State, 473 So. 2d 1253, 1257 (Fla. 1985);  Brockman v. State, 852 So. 2d 330 (Fla. 2d DCA 2003).   The fact that the trial court only became aware of a competency issue after the jury was sworn makes this case more difficult for the trial court from a case management perspective but does not alter defendant's constitutional right to a fair trial.   Thus, while this Court is mindful of the tremendous burden placed on the trial courts to make an independent inquiry into a defendant's competency, whenever competency  'may' be an issue,  pursuant to Hill, the record in this case requires appellant's conviction be reversed and this cause be remanded for a new trial contingent upon a determination that he is competent to stand trial. Hill, 473 So. 2d 1257. 

 

IT IS THEREFORE ORDERED that the judgments and sentences be REVERSED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of October, 2004.

 

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Honorable Robert P. Cole

Joy K. Goodyear, Assistant Public Defender

C. Marie King, Assistant State Attorney