Durham v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DAVARIUS DURHAM,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2023-1548

April 9, 2025

Appeal from the Circuit Court for Hillsborough County; Laura Ward, Judge.

Blair Allen, Public Defender, and Brett S. Chase, Special Assistant Public Defender, Bartow, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Natalia Reyna- Pimiento, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM. Davarius Durham appeals his judgment and sentence for one count of sexual battery upon a victim less than twelve years old. Prior to trial, the issue of competency was raised. The trial court made an oral finding of competency after the parties stipulated to the mental health expert's report. However, the record does not demonstrate that the trial court reviewed the contents of the report. Nor did the trial court enter a

written order finding Durham competent to proceed. We reverse and remand for a nunc pro tunc determination of competency. To the extent such a determination cannot be made, we remand for a new trial. See Sutton v. State, 264 So. 3d 261, 263–64 (Fla. 2d DCA 2019); Goonewardena v. State, 347 So. 3d 1273,1277 (Fla. 5th DCA 2022). Reversed and remanded with directions.

KELLY, LUCAS, and SMITH, JJ., Concur. Opinion subject to revision prior to official publication.