IN THE SUPREME COURT STATE OF FLORIDA 200 APR 26 PM l 46 CLERK, SUPREME COURT JOHN FRAISER,

Petitioner,

Vs. Case No:.

DCA Case no.: 1D11-6675

STATE OF FLORIDA,

Respondent,

ON DISCRETIONARY REVIEW

FROM THE DISTRICT COURT OF APPEAL

FIRST DISTRICT OF FLORIDA

PETITIONER'S JURISDICTIONAL BRIEF

John Fraiser, pro se DC# 955448 PROVIDED TO RECEPTION MEDICAL ENTE AIUNG Reception & Medical Center, Main Unit P.O. Box 628 INMATE INITIALS: Y Lake Butler, Florida 32054-0628

1 TABLEOFCONTENTS

TABLE OF CONTENTS ...... ii TABLE OF CITATIONS ...... iii STATEMENT OF THE CASE AND FACTS...... 1 SUMMARY OF THE ARGUMENT ...... 5 ARGUMENT...... 5

POINT ONE: DOES A TRIAL COURT'S FAILURE TO CONDUCT A COMPETENCY HEARING AFTER ISSUING AN ORDER TO DETERMINE COMPETENCY, DEMONSTRATE ABUSE OF DISCRETION AND REVERSIBLEERROR...... 5 StandardofReview...... 5 ArgumentontheMerits...... 5 USIONCONCL ...... 11

TCEERTIFICA - . - - ...... COCERTIFICATE OF MPLIANCE ...... a ...... a . .

11 TABLE OF CITATIONS

Florida Cases

Burns v. State, 63 So.3d 887 (Fla. 5th DCA 2011)...... 1 Caraballo v. State, 39 So.3d 1234 (Fla.2010)...... 1 Hardy v. State, 716 So.2d 761 (Fla.1998)...... 5 Martinez v. State, 712 So.2d 818 (Fla. 2d DCA 1998)...... 1 McCray v. State, 71 So.3d 848 (Fla.2011)...... 5 Monte v. State, 51 So.3d 1196 (Fla. 4th DCA 2011)...d...... :...... 1 Patton v. State, 784 So.2d 380 (Fla.2000)...... 9 Rosier v. State, 38 So.3d 856 (Fla. 14 DCA 2010)...... 1 Thompson v. State, 88 So.3d 312 (Fla.2012)...... 8, 11

Federal Cases

Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)...... 8, 11

Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). 8, 11

Florida Rules

Rule 3.210(b), Florida Rules of Criminal Procedure...... 5, 7 Rule 3.210, Florida Rules of Criminal Procedure...... 12 Rule 3.211(a)(2)(A), Florida Rules of Criminal Procedure...... 6 Rule 3.211(a), Florida Rules of Criminal Procedure ...... 5, 6 Rule 3.211, Florida Rules of Criminal Procedure...... 8, 12

111 Rule 3.212, Florida Rules of Criminal Procedure...... 12 Rule 9.210(a)2, Florida Rules ofAppellate Procedure...... 13

Florida Statutes Section 775.084, Florida Statutes ...... 2 Section 775.087, Florida Statutes ...... 2 Section 916.12(1), Florida Statutes...... 5, 6 Section 916.12, Florida Statutes ...... 8, 12

1V STATEMENT OF THE CASE AND FACTS

Petitioner, John Fraiser, pro se, is a prisoner within the Florida Department of

Corrections. On appeal, Mr. Fraiser asserted the trial court committed reversible error in failing to conduct a competency hearing after issuing an order directing a court appointed expert to evaluate his competency to proceed. After the order, and the evaluation, the court did not conduct a competency hearing and did conduct further adversarial proceedings including imposing judgment and sentence.

Mr. Fraiser asserts that the decision denying relief by the Florida Fit·st District

Court of Appeal is in express conflict with prior published decisions of this Court1, and the Florida District Courts of Appeal2. Mr. Fraiser respectfully asserts he is therefore entitled to relief from this Court.

On May 3, 2008, Mr. Fraiser was arrested in Jacksonville, Duval County,

Florida and charged by three (3) count felony information with aggravated assault

i Caraballo v. State, 39 So.3d 1234, 1252 (Fla.2010) (If the court has reasonable ground to believe that defendant is not mentally competent to proceed, it shall immediately schedule a hearing to determine defendant's competency and may appoint experts to evaluate the defendant.) 2 Rosier v. State, 38 So.3d 856, 857 (Fla. 1" DCA 2010) (conviction reversed for competency hearing and new trial due to the trial court's failure to conduct a competency hearing); Martinez v. State, 712 So.2d 818, 821 (Fla. 2d DCA 1998) (In order for an expert's psychological evaluation to constitute evidence adequate to support a trial court's competency determination, it must include a discussion of each of the specific factors which rule 3.211(a) enumerates.); Monte v. State, 51 So.3d 1196, 1202 (Fla. 4th DCA 2011) (Once a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing.); and Burns, v. State, 63 So.3d 887 (Fla. 5th DCA 2011) (Conviction reversed and remanded for competency hearing and new trial for failure to conduct competency hearing)

1 on a law enforcement officer; felony possession of a firearm by a convicted felon;

and aggravated assault. The Office of the. Public Defender was appointed to

represent Mr. Fraiser in the instant cause. (R Vol. I, 1-12)

On July 9, 2008, the State of Florida filed a notice of intent to classify Mr.

Fraiser as a Prison Releasee Reoffender under Section 775.087, Florida Statutes,

and as an Habitual Violent Felony Offender under Section 775.084, Florida

Statutes. (R Vol. I, 24-25)

On January 22, 2009, all parties agreed to a preliminary finål dispositiotr that

Mr. Fraiser would enter a negotiated plea of guilty and in return, the Court would

impose a three-year minimum mandatory term in prison. See Case Docket

Summary, 5 of 16. No further action regarding this final disposition was taken.

On May 20, 2010, the Honorable Lawrence P. Haddock issued a sua sponte order directing Mr. Fraiser to undergo a competency determination. The Court ordered Dr. William R. Meadows, to evaluate Mr. Fraiser's ability to proceed with the criminal proceedings. (R Vol. I, 65) Doctor Meadows' evaluation was to take place on May 24, 2010. (R Vol. I, 65) Additionally, the Court ordered that two copies of Dr. Meadows evaluation shall be delivered to the Court prior to Mr.

Frasier's next court appearance, which was scheduled for June 17, 2010. (R Vol. I,

65)

2 On June 28, 2011, Mr. Fraiser appeared in court on matters relating to the State

of Florida's intent to classify Mr. Fraiser as a Prison Releasee Reoffender and

Habitual Violent Felony Offender. (R Vol. I, 89 - 90) During this adversarial

hearing, Mr. Fraiser refused to stipulate to the factual basis of the out-of-state

convictions relied on by the State for the requested sentencing enhancements3. Mr.

Fraiser's objections challenged the viability of the possession of a firearm by a

convicted felon allegations in count two of the information.

On October 31, 20ll,2Mr. Fraiser appeared before the Court to select'jufy for

trial proceedings. Mr. Fraiser participated in the jury selection and with the

assistance of counsel and selected a jury panel. Jury trial was scheduled to

commence November 1, 2011.

On November 1, 2011, prior to the jury trial commencing, Mr. Fraiser entered a

best interest, open plea to the Court to the charged offenses. (R Vol. I, 97-114) The

Court accepted Mr. Fraiser's plea as voluntary and sentencing was scheduled for

December 8, 2011.

On December 8, 2011, the Court imposed sentence of twenty (20) years prison

as a Habitual Violent Felony Offender. (R Vol. I, 115-124)

On December 13, 2011, Mr. Fraiser's appointed counsel filed a notice of appeal

seeking appellate review of the judgment and sentence. (R Vol. I, 138)

3 At the time of this hearing, Judge Haddock had not issued a final determination finding Mr.

3 On December 22, 2011, Mr. Fraiser, pro se, filed a motion to withdraw plea. (R

Vol. I, 146) The Court failed to conduct a hearing, or issue an order in final

disposition regarding the motion.

On November 29, 2012, the First District Court of Appeal issued an order

affirming, per curiam, Mr. Fraiser's appeal of the judgment and sentence.

On December 9, 2012, Mr. Fraiser submitted a motion for rehearing asserting that the Court's determination regarding the competency proceedings was misplaced and in error.

On of434 , 2013, the Florida First District Court of appeal issued a fmal order denying the motion for rehearing.

On c//vay43 , 2013, Mr. Fraiser submitted his notice of seeking discretionary review of this Court.

The instant brief then follows.

Fraiser competent to proceed.

4 SUMMARY OF THE ARGUMENT

Mr. Fraiser respectfully asserts the trial court committed reversible error by

proceeding to a final disposition accepting .a best interest plea and imposing judgment and sentence without conducting a hearing to determine his competency

after issuing an order to determine competency pursuant to Rule 3.211(a), Florida

Rules of Criminal Procedure, and Section 916.12(1), Florida Statutes.

The decision of the First District Court of Appeal denying relief on the

aforementioned. question of law is contrary to clearly established law of this Court,

and the Supreme Court of the United States.

ARGUMENT

POINT ONE: DOES A TRIAL COURT'S FAILURE TO CONDUCT A COMPETENCY HEARING AFTER ISSUING AN ORDER TO DETERMINE COMPETENCY, DEMONSTRATE ABUSE OF DISCRETION AND REVERSIBLE ERROR. Standard of Review

A trial court's decision regarding competency will stand absent a showing of abuse of discretion. McCray v. State, 71 So.3d 848 (Fla.2011) citing Hardy v.

State, 716 So.2d 761, 764 (Fla.1998).

Argument on the Merits

Rule 3.210(b), Florida Rules of Criminal Procedure, provides in pertinent part,

"If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally

5 competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition, which shall be held no later than 20 days after the date of the filing of the motion..." On January 21, 2010, defense counsel, Todd Niemczyk, APD, filed a motion

for continuance. As grounds for the continuance, counsel stated,

"Mr. Fraiser has a history of mental health illness. Upon careful review of the facts and circumstances surrounding his arrest, and based on the findings of Dr. Stephen Bloomfield, the Defense intends on pursumg an insanity defense and has provided notice thereof." (R Vol. I, 58)(Emphasis added) Alohg"with reqüesting the continuance, counsel also filed a notice of intent to rely on insanity defense. (R Vol. I, 60)

On May 20, 2010, Judge Haddock issued a sua sponte order directing Dr.

William R. Meadows to evaluate Mr. Frasier within the provisions of Rule

3.211(a), Florida Rules of Criminal Procedure, and report relative to whether Mr.

Fraiser was competent4 to proceed pursuant to the criteria established and set forth in Section 916.12(1), Florida Statutes, and Rule 3.211(a), Florida Rules of

Criminal Procedure5. (R Vol. I, 65)

Rule 3.211(a)(2)(A), Florida Rules of Criminal Procedure, establishes specific criteria the appointed expert must evaluate the criminal defendant for. A report

4 This Court has expressly noted a distinct difference between "sanity at the time of the offense" and "competency to proceed" as they relate to conduct of the criminally accused. See, e.g. Patton v. State, 784 So.2d 380, 387 (Fla.2000) (Competency to stand trial and insanity at the time of the offense involve the defendant's mental state at separate and distinct points in time.)

6 must then be compiled and submitted to the court. Upon completion of the

evaluation by the expert and submission of any prepared report, a hearing regarding competency must be held within 20 days of the date of any motion for

examination or order directing said evaluation be done. See Rule 3.210(b), Florida

Rules of Criminal Procedure.

On May 24, 2010, Dr. Meadows evaluated Mr. Fraiser. Dr. Meadows submitted his report of that evaluation on June 17, 2010. The Court did not conduct a hearing to review Dr.sMeadows report or to determine Mr. Fraiser's competency to proceed.

Dr. Meadows report to the Court appears in the Record of Appeal. (R Vol. I, 74

- 80) The title of the report, "Confidential Forensic Psychological Evaluation

Sanity at the Time of Offense," acknowledges that Dr. Meadows was directed by the Court to evaluate Mr. Fraiser's "competency to proceed." (R Vol. I, 74)

However, the report also indicates that Mr. Fraiser's attorney clarified that he was to evaluate Mr. Fraiser for "sanity at the time of the offense." (R Vol. I, 74) Dr.

Meadows admittedly did not evaluate Mr. Fraiser for "competency to proceed" as ordered by the Court. Therefore, the specter of Mr. Fraiser's lack of competency to proceed in the criminal prosecution was never lifted once imposed.

5 Additional orders to evaluate Mr. Fraiser were issued on October 14, 2010, per the prosecution'srequest.

7 Rule 3.210(a), Florida Rules of Criminal Procedure, specifically bars continuation of proceedings to a final disposition of a person who is deterrnined mentally incompetent. Furthermore, a criminal defendant has a due process right not to be proceeded against while incompetent. Thompson v. State, 88 So.3d 312,

317 (Fla.2012) (citing Medina v. Cahfornia, 505 U.S. 437, 440, 112 S.Ct. 2572,

120 L.Ed.2d 353 (1992)) Additionally, [T]he Supreme Court of the United States has long recognized that "the failure to observe procedures adequate to protect a defendant's rightito be tried on convicted while incompetent to stand trial deprives him of his due process right to a fair trial." Thompson, 88 So.3d at 316, citing

Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)

(Emphasis added) Mr. Fraiser respectfully asserts that once the specter of "lack of competency to proceed" is raised by the trial court, and a defendant is deemed incompetent to proceed, that specter remains with the defendant until such time as the Court determines otherwise, based on the criteria established in Rule 3.211,

Florida Rules of Criminal Procedure and Section 916.12, Florida Statutes.

In the instant cause, Judge Haddock questioned Mr. Fraiser's competency to proceed with the prosecution. He ordered Dr. Meadows to evaluate him on that basis. According to Dr. Meadows report, Mr. Fraiser's defense counsel, Mr.

Niemczyk, interceded Judge Haddock's order and directed Dr. Meadows to evaluate his client to determine his sanity at the time he committed the alleged

8 offenses. Two distinct, different, and relevant psychological evaluations. See

Patton, supra.

Whether Mr. Fraiser was mentally sane at the time he committed the offenses

was not a matter of interest to Judge Haddock. It is apparent that Judge Haddock

observed certain indicators that questioned whether Mr. Fraiser was competent to

proceed with the prosecution of the case. Thus, the basis for his order to Dr.

Meadows to evaluate Mr. Fraiser. However, Dr. Meadows did not comply with the

Court's order H did not conduct a "competency to proceed" evaluation.. Dr.

Meadows conducted a "sanity at the time of the offense" evaluation.

While Dr. Meadows did file his report with the Court, Judge Haddock did not

conduct a competency hearing taking into considering Dr. Meadows report. Judge

Stetson, the successor judge in the instant case also did not conduct a competency

hearing based on Dr. Meadows report.

Several critical factors are to be considered here; 1) Mr. Fraiser was not

evaluated for his competency to proceed as ordered by Judge Haddock, 2) a

competency hearing was not held in compliance with Florida law and 3) other

adversarial hearings were conducted to include imposition of judgment and

sentence without Mr. Fraiser being determined competent to proceed

6 The PRR/HVFO, possession of firearm by convicted felon hearing, jury selection, entering of a plea, and imposition ofjudgment and sentence were all conducted while the under the specter of "not competent to proceed" attached by Judge Haddock on May 20, 2010.

9 The State of Florida conceded to Dr. Meadows' improper evaluation on

October 14, 2010. Assistant State Attorney Douglas A. Dorsey filed the State's motion for psychiatric examination. The State's motion specifically cites in paragraph (3) that Dr. Meadows opined in his report that Mr. Fraiser was "legally sane at the time the Defendant committed the pending charges." (R Vol. I, 84) Mr.

Fraiser's sanity at the time of offense was not a question relevant to Judge

Haddock's order. Mr. Fraiser's competency to proceed was the distinct factor of

Judge Haddock's order.

On June 28, 2011, the State of Florida filed a Notice to Seek Judicial Notice of prior out-of-state convictions allegedly belonging to Mr. Fraiser. (R Vol. I, 90) A lengthy adversarial hearing was held regarding this notice during which Mr.

Fraiser was present with his counsel. Additionally, the Court scheduled Mr. Fraiser to appear for jury selection on August 8, 20117.

On October 31, 2011, Mr. Fraiser appeared before the Honorable Brad Stetson for jury selection. A jury was selected for trial and trial was scheduled for

November 1, 2011.

On November 1, 2011, Mr. Fraiser appeared before Judge Stetson for jury trial.

On the affirmative advice of his defense counsel and before jury trial commenced,

Mr. Fraiser entered a best interest open plea to the court, resulting in his conviction

10 of the charged offenses and imposition of a substantive HVFO 20-year prison term.

Proceedings Mr. Fraiser asserts violate his rights to due process under the United

States Constitution and the Florida Constitution. See Thompson, supra.

Additionally, each of the aforementioned adversarial proceedings were

proceedings barred by Florida law once Mr. Fraiser was deemed "not competent to

proceed" by Judge Haddock on May 20, 2010.

CONCLUSION

The Due Process Clause of the United States Constitution prohibits. the prosecution of the criminally accused who has been deemed incompetent. Medina v. Cahfornia, 505 U.S. 437, 440, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) Mr.

Fraiser was deemed incompetent by the Court on May 20, 2010.

The Supreme Court of the United States has long held that the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted once determined incompetent deprives him of the due process right to a fair trial. Drope v.. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) Substantive and procedural law established in the State of Florida are in place to provide such protection to those deemed incompetent. Mr. Fraiser was deemed incompetent on

May 20, 2010. Without later being deemed competent by Judge Haddock or Judge

7 Jury selection was subsequently re-scheduled many times and ultimately did occur on October 31, 2011. See Docket Entry Report, 13 of 16.

11 Stetson, the Court accepted a best interest plea, entered judgment and sentenced

Mr. Fraiser, in violation of these United States Constitutional protections in place.

The Florida Legislature and this Honorable Court have established protective

measures and procedures to protect the criminally accused from proceeding to trial

when mental competency is in question. See e.g., Section 916.12, Florida Statutes,

and Rules 3.210, 3.211, and 3.212, Florida Rules of Criminal Procedure.

Judge Haddock recognized a probable matter of mental competency to proceed

with regard to Mr. Fraisen In his gatekeeping role to protect the criminally

accused, he appointed Dr. Meadows to evaluate Mr. Fraiser on that basis. The

competency to proceed evaluation was not conducted as ordered, and a hearing to

determined competency was not held after the evaluation. Further adversarial proceedings were conducted with Mr. Fraiser as an active participant, all while

deemed not competent to proceed. Mr. Fraiser's participation while under the specter of not being competent to proceed clearly violates Florida law, federal law, and the Due Process Clause of United States Constitution and the Florida

Constitution.

Therefore, Mr. Fraiser's judgment and sentence should be reversed and remanded for further proceedings consistent with, and in keeping with prior decisions of this Court.

12 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the aforementioned initial brief has been furnished to the Office of the Attorney General, Criminal

Appeals Division, The Capitol, Pl-01, Tallahassee, Florida by First Class U.S.

Mail via hand delivery to prison officials at Reception & Medical Center, Main

Unit, Lake Butler, Florida on this day of 2013.

John Fraiser,pro se Reception & Medical Center, Main Unit P.O. Box 628 Lake Butler, Florida 32054-0628

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the font requirement of

Rule 9.210(a)2, Florida Rules of Appellate Procedure.

John Fraiser, pro se

13