State of Florida v. Vernson Edward Dortch

        Supreme Court of Florida

                            No. SC18-681

                        STATE OF FLORIDA,


                   VERNSON EDWARD DORTCH,

                            May 20, 2021


     A Florida rule of appellate procedure requires a criminal

defendant to file a motion to withdraw the plea in the trial court

before appealing an involuntary plea. This case presents a certified

conflict over whether there is a “fundamental error” exception to

that rule. We hold that there is no such exception. A defendant

who does not comply with the rule’s preservation requirement must

seek any available relief through collateral review.

                A. Facts and Procedural Background

     On August 3, 2016, Vernson Dortch pleaded no contest to

charges of possession of a firearm by a convicted felon, dealing in

stolen property, aggravated assault by a detainee with a deadly

weapon, and introducing contraband into a county detention

facility. The plea, which resolved two cases then pending against

Dortch, was against the advice of counsel.

     Dortch gave appropriate answers to the trial court’s questions

at the plea hearing. The trial court stated on the record that he

found the plea to be “freely and voluntarily given” and that Dortch

“under[stood] the nature and consequences of it.” Dortch’s counsel

signed the felony plea form, confirming that counsel “consider[ed]

[Dortch] competent to understand the charges against [him] and the

effect of the plea entered by this document.”

     About two weeks later, the trial court held a sentencing

hearing. After hearing from Dortch and from one of the victims of

Dortch’s crimes, the court imposed a ten-year prison sentence,

including a three-year mandatory minimum. The next day,

Dortch’s counsel filed a notice of appeal. Notwithstanding the

preservation requirement of Rule of Appellate Procedure

9.140(b)(2)(A)(ii)(c), which we discuss in detail below, Dortch did not

first file a motion to withdraw his plea.

     Dortch’s appeal centered on events that happened months

before the plea hearing, when the case was before a different judge

and Dortch was represented by different counsel. On October 30,

2015, Dortch’s then-counsel had filed a written “Motion for

Examination of Defendant” under Rule of Criminal Procedure

3.210(b). The motion requested the appointment of an expert to

examine Dortch “on the issue of competence to proceed.” As

required by rule 3.210(b)(1), the motion included a certification that

Dortch’s counsel had “reasonable grounds to believe that [Dortch] is

incompetent to proceed.”

     We do not know the factual basis for defense counsel’s belief.

Rule 3.210(b)(1) says: “To the extent that it does not invade the

lawyer-client privilege, the motion shall contain a recital of the

specific observations of and conversations with the defendant that

have formed the basis for the motion.” As to this requirement,

defense counsel’s motion said: “[T]he undersigned cannot allege

further as any recitation of specific observations of and

conversations with the Defendant would invade the lawyer-client


     All of that is unremarkable. The irregularity is that defense

counsel’s motion also said that “the defendant hereby waives the

required 20 day hearing, pursuant to Fla. R. Crim. P. 3.210(b).”

This was a reference to the rule’s requirement that the court hold a

competency hearing within 20 days if the court “has reasonable

ground to believe that the defendant is not mentally competent to


     The trial court (again, a different judge from the one who

months later would take Dortch’s plea) entered an order that

granted defense counsel’s motion and appointed a psychologist to

examine Dortch. The court used a form order, with pre-printed

information and blank spaces that could be marked. In pre-printed

text, paragraph 5 of the form order gave notice of the 20-day

hearing requirement of rule 3.210(b). But beneath that notice, the

trial court added: “The Defendant hereby waives this provision and

shall schedule a competency hearing pursuant to the Florida Rules

of Criminal Procedure should it become necessary, with notice to

the State and Court.”

     The order did not say that the court had reasonable ground to

believe that Dortch was incompetent to proceed. Nor did the order

recite any facts about Dortch’s behavior or mental condition.

Instead, the order simply checked the box indicating that the

matter was before the court on motion by defense counsel.

     The record does not indicate that the trial court ever held a

hearing to determine Dortch’s competence. Nor does the record

indicate whether Dortch’s examination took place or the results of

any such examination.

                  B. The Fourth District’s Decision

     The Fourth District ruled on Dortch’s appeal in a unanimous

en banc decision. Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th

DCA 2018). Citing rules 3.210(b) and 3.212(b), the district court

first held that “[o]nce a trial court has reasonable grounds to believe

the defendant is incompetent and orders an examination, it must

hold a hearing and it must enter a written order on the issue.” Id.

The district court concluded that the trial court violated these rules

here and that it had thereby committed “fundamental error.” Id.

     The Fourth District further held that, in these circumstances,

“it is not necessary that a defendant first file a motion to withdraw

plea.” Id. The district court reasoned:

     To require a criminal defendant, who may be
     incompetent, to file a motion to withdraw a plea before
     raising the issue on appeal is unwarranted. If a
     defendant is incompetent, confining him to post-
     conviction relief, without the assistance of counsel, is not
     a remedy designed to do justice.

Id. As a remedy, the Fourth District remanded the case with

instructions to determine Dortch’s competence nunc pro tunc, if

possible. If not, the judgment and sentence were to be vacated and

the case set for trial. Id.

     The Fourth District certified conflict with the decisions in

Pressley v. State, 227 So. 3d 573 (Fla. 1st DCA 2017); Garcia-

Manriquez v. State, 146 So. 3d 134 (Fla. 3d DCA 2014); and Hicks v.

State, 915 So. 2d 740 (Fla. 5th DCA 2005). We accepted

jurisdiction to resolve the conflict.


     On the conflict issue, the State argues that the Fourth District

erred by holding that Dortch could directly appeal his convictions

without first filing a motion to withdraw his plea. We agree. There

is no fundamental-error exception to the applicable preservation


     A. Robinson and the Criminal Appeal Reform Act of 1996

     This Court’s leading decision on the right to appeal after

pleading guilty or nolo contendere is Robinson v. State, 373 So. 2d

898 (Fla. 1979).1 We held in Robinson that “[t]here is an exclusive

and limited class of issues which occur contemporaneously with the

entry of the plea that may be the proper subject of an appeal.” Id.

at 902. We characterized those issues as ones that stem from

“conduct that would invalidate the plea itself.” Id.

     Robinson’s list of appealable issues includes “only the

following: (1) the subject matter jurisdiction, (2) the illegality of the

sentence, (3) the failure of the government to abide by the plea

      1. Robinson involved a constitutional challenge to the
following provision, which the Legislature had enacted in 1976: “A
defendant who pleads guilty or nolo contendere with no express
reservation of the right to appeal shall have no right to a direct
appeal. Such a defendant shall obtain review by means of collateral
attack.” Ch. 76-274, § 7, Laws of Fla.; § 924.06(3), Fla. Stat. (Supp.
1976). We upheld the statute, concluding that its prohibitions “are
directed to pretrial rulings and not to matters which may occur
contemporaneously with” the plea. Robinson, 373 So. 2d at 900.
We concluded that the Legislature had done “no[thing] more than
codify the existing case law on the subject.” Id.

agreement, and (4) the voluntary and intelligent character of the

plea.” Id. at 902.

     Importantly for this case, we further held in Robinson that “an

appeal from a guilty plea should never be a substitute for a motion

to withdraw a plea.” Id. (emphasis added). To illustrate the point,

we said: “If the record raises issues concerning the voluntary or

intelligent character of the plea, that issue should first be presented

to the trial court in accordance with the law and standards

pertaining to motions to withdraw a plea.” Id. Our decision in

Robinson thus determined that the state constitutional right to

appeal does not include the right to appeal an involuntary plea

without first filing a motion to withdraw plea.

     Nearly two decades after we decided Robinson, the Legislature

enacted the Criminal Appeal Reform Act of 1996. Among its

provisions was the following:

     If a defendant pleads nolo contendere without expressly
     reserving the right to appeal a legally dispositive issue, or
     if a defendant pleads guilty without expressly reserving
     the right to appeal a legally dispositive issue, the
     defendant may not appeal the judgment or sentence.

Ch. 96-248, § 4, Laws of Fla.; § 924.051(4), Fla. Stat. (Supp. 1996).

Despite the categorical language of the text, in Amendments to the

Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1105 (Fla.

1996) (1996 Amendments), we held that “[a] defendant must have

the right to appeal that limited class of issues described in


     In response to the 1996 Act, this Court amended the Rules of

Appellate Procedure to codify Robinson’s limited list of appealable

issues and its requirement that a defendant file a motion to

withdraw plea before appealing an allegedly involuntary plea. Id.

We also announced our adoption of Rule of Criminal Procedure

3.170(l), “which authorizes the filing of a motion to withdraw the

plea after sentencing within thirty days from the rendition of the

sentence, but only upon the grounds recognized by Robinson or

otherwise provided by law.” Id. We said that we were adopting the

new rule 3.170(l) “[c]onsistent with the legislature’s philosophy of

attempting to resolve more issues at the trial court level.” Id.

             B. Voluntariness and Rule 9.140(b)(2)(A)(ii)(c)

     Dortch’s appeal is governed by Rule of Appellate Procedure

9.140(b)(2)(A)(ii)(c)—again, the rule through which we codified

Robinson and responded to the 1996 Act. That rule allows a

defendant to appeal “an involuntary plea, if preserved by a motion

to withdraw plea.” Accordingly, we begin by addressing the

threshold question whether Dortch’s claim goes to the voluntariness

of his plea.2

     As we will explain in detail, Dortch claims that he had a

procedural due process right to a determination of his competence

before the trial court accepted his no contest plea. “The nature of

competency goes to the heart of whether a defendant has the

capacity to make a cogent, legally binding decision.” Sheheane v.

State, 228 So. 3d 1178, 1181 (Fla. 1st DCA 2017). And we have

said that a plea “must be voluntarily made by one competent to

know the consequences of that plea and must not be induced by

promises, threats, or coercion.” Mikenas v. State, 460 So. 2d 359,

361 (Fla. 1984). Because a voluntary plea requires a competent

defendant, we conclude that Dortch’s appeal claims an “involuntary

      2. Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii) says
that, absent reservation, a “defendant who pleads guilty or nolo
contendere may otherwise directly appeal only: a. The lower
tribunal’s lack of subject matter jurisdiction; b. a violation of the
plea agreement, if preserved by a motion to withdraw plea; c. an
involuntary plea, if preserved by a motion to withdraw plea; d. a
sentencing error, if preserved; or e. as otherwise provided by law.”

                                - 10 -
plea” for purposes of the rule and that we must therefore proceed to

address the rule’s preservation requirement.

            C. Preservation and Rule 9.140(b)(2)(A)(ii)(c)

     The Fourth District concluded that the trial court had erred by

not holding a competency hearing before accepting Dortch’s plea

and that this was fundamental error. It further concluded that,

because the trial court had committed fundamental error, it was

not necessary for Dortch to file a motion to withdraw plea before

pursuing a direct appeal.


     A threshold issue in addressing any claim of fundamental

error is whether there was error at all—“fundamental” or not.

Dortch’s claim of error in this case warrants discussion.

     “[T]he conviction of an accused person while he is legally

incompetent violates due process.” Pate v. Robinson, 383 U.S. 375,

378 (1966). In Godinez v. Moran, 509 U.S. 389, 398-99 (1993), the

Supreme Court held that the constitutional standard for

competence to plead guilty is the same as the standard for

competence to stand trial, as established in Dusky v. United States,

362 U.S. 402 (1960). That standard asks “whether the defendant

                                - 11 -
has ‘sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding’ and has ‘a rational as

well as factual understanding of the proceedings against him.’ ”

Godinez, 509 U.S. at 396 (citation omitted).

     In this case, Dortch does not allege a violation of his right not

to be proceeded against while incompetent. He instead asserts that

he “may have been and may still be incompetent.” Dortch thus

invokes the separate “procedural due process” right that the

Supreme Court established in Pate and in Drope v. Missouri, 420

U.S. 162, 172 (1975).3

     The Supreme Court in Pate held that “the failure to observe

procedures adequate to protect a defendant’s right not to be tried or

convicted while incompetent to stand trial deprives him of his due

process right to a fair trial.” Drope, 420 U.S. at 172 (explaining

Pate’s holding). But the Court did not “prescribe a general standard

with respect to the nature or quantum of evidence necessary to

      3. To be clear, Pate and Drope addressed the circumstances in
which a defendant has a constitutional right to procedures to
protect his right not to be tried while incompetent. Those cases did
not involve a right to appeal or due process rights in the appellate

                                - 12 -
require resort to an adequate procedure.” Id. at 172. Instead, the

question in every case is whether the information known to the trial

court “create[s] a sufficient doubt of [the defendant’s] competence to

stand trial to require further inquiry on the question.” Id. at 180.

      In Drope, the Supreme Court cautioned that there are “no

fixed or immutable signs which invariably indicate the need for

further inquiry to determine fitness to proceed; the question is often

a difficult one in which a wide range of manifestations and subtle

nuances are implicated.” Id. Factors that the Supreme Court

deemed relevant to determining whether further inquiry is required

include “evidence of a defendant’s irrational behavior, his demeanor

at trial, and any prior medical opinion on competence to stand

trial.” Id.

      One thing is clear: while defense counsel’s views about a

defendant’s competence are important, the Supreme Court in Drope

rejected the notion that “courts must accept without question a

lawyer’s representation concerning the competence of his client.”

Id. at 177 n.13. Federal circuit courts applying Drope have held

that mere assertions of defense counsel, without more, do not

trigger a defendant’s constitutional right to competency

                                - 13 -
proceedings. See, e.g., United States v. Abdulmutallab, 739 F.3d

891, 901 (6th Cir. 2014) (competency hearing not constitutionally

required where defense counsel’s motion “did not provide sufficient

factual details that would cause the court to question

Abdulmutallab’s competency”); Bryson v. Ward, 187 F.3d 1193,

1202 (10th Cir. 1999) (“[T]he concerns of counsel alone are

insufficient to establish doubt of a defendant’s competency.”);

Reynolds v. Norris, 86 F.3d 796, 800 (8th Cir. 1996) (same).

     We have long recognized that rule 3.210 establishes the

procedures through which Florida complies with the mandate of

Drope and Pate and protects a defendant’s right not to be proceeded

against while incompetent. See Lane v. State, 388 So. 2d 1022,

1025 (Fla. 1980). In Lane we explained that “[t]he law is now clear

that the trial court has the responsibility to conduct a hearing for

competency to stand trial whenever it appears reasonably

necessary, whether requested or not, to ensure that a defendant

meets the standard of competency set forth in Dusky.” Id.

     Consistent with Drope and Pate, rule 3.210(b) requires a

hearing when the trial court “has reasonable ground to believe that

the defendant is not mentally competent to proceed.” Once that

                                - 14 -
predicate is established, rule 3.210 says that the trial court “shall”

hold a competency hearing within 20 days and that it “may” order a

psychological examination. Given the text of the rule, and reading

the rule in light of Drope and Pate, the “reasonable ground” test is

an objective one that looks at the information available to the trial

court at the relevant time in the proceedings.

     Whether the trial court erred in Dortch’s case, and if so

whether any error was of constitutional dimension, would present

an issue of first impression for our Court. Here, the only record

“evidence” of Dortch’s potential incompetence was his initial

counsel’s unelaborated representation to that effect—a

representation that counsel undermined by simultaneously waiving

a hearing (at least pending the psychological evaluation). Other

evidence in the record cuts against the argument that there existed

“reasonable ground” to question Dortch’s competence. Most

importantly, Dortch’s second counsel affirmed that Dortch was

competent at the time of his plea, and the trial judge who

                                 - 15 -
conducted the plea colloquy also found Dortch competent to enter

his plea.4

     Dortch is thus left to argue that the due process violation in

this case consists of the trial court deviating from rule 3.210 by

“ordering an evaluation of [Dortch’s] competency but then accepting

his plea without conducting a competency hearing or making a

competency determination.” This argument presents a question

that this Court has never addressed: does a trial court’s decision to

order a psychological evaluation create a constitutional entitlement

to a subsequent competency hearing, regardless of whether the

information available to the trial court met the evidentiary threshold

      4. For context, consider the contrast with the evidence that
triggered the right to a competency determination in Drope and
Pate. The defendant in Drope tried to choke his wife to death on the
eve of trial and then shot himself in a suicide attempt on the
morning of the second day of trial. Drope, 420 U.S. at 162. In Pate,
the trial court had been presented with the testimony of four
witnesses showing that the defendant “had a long history of
irrational behavior,” including a suicide attempt and the murder of
his 18-month-old son. Pate, 383 U.S. at 378-81.

                                - 16 -
for invoking the rule 3.210 competency procedures in the first

place? 5

     Several variables specific to this case would potentially be

relevant to answering the question. Dortch’s counsel asked for an

evaluation but explicitly waived a hearing. The trial court granted

the psychological examination without making any explicit finding

about whether there was “reasonable ground” to question Dortch’s

competency. And neither the record nor the court’s order discloses

any details about Dortch’s condition or behavior that would have

supported such a finding.

     In any event, there is no need for us here to resolve the

question whether (and if so how) the trial court erred by failing sua

sponte to hold a competency hearing. Dortch did not comply with

the preservation requirement of rule 9.140(b)(2)(A)(ii)(c).

Accordingly, for the court of appeal to have considered Dortch’s

claim of error at all, there would have to be a fundamental-error

      5. This Court’s decision in Dougherty v. State, 149 So. 3d 672
(Fla. 2014), in which we emphasized the importance of compliance
with rule 3.210(b), sheds no light on this issue. The defendant in
Dougherty had been adjudicated incompetent, and the issue was
whether defense counsel could subsequently stipulate that the
defendant’s competence had been restored. Id. at 673.

                                 - 17 -
exception to the rule. We next explain why there is no such



     To put the preservation issue in context, we begin with some

observations about the fundamental error doctrine itself.

“Fundamental error” is a label for error that an appellate court will

remedy even though the claim was not preserved in the court below.

Appellate courts will not find fundamental error unless the error

meets some threshold level of seriousness. 6 But courts (including

this Court) have articulated the fundamental error test in different

ways depending on the context. See Maddox v. State, 760 So. 2d

89, 99 (Fla. 2000) (“It is no secret that the courts have struggled to

establish a meaningful definition of ‘fundamental error’ that would

be predictive as compared to descriptive.”) (quoting Denson v. State,

711 So. 2d 1225, 1229 (Fla. 2d DCA 1998)). We will not muddy the

waters even more by attempting to make sense of or harmonize the

various tests here.

     6. “Courts and lawyers well know the meaning of fundamental
error—a mistake in a proceeding substantial enough to abrogate the
need for contemporaneous objection.” Thomas v. State, 894 So. 2d
1000, 1002 (Fla. 1st DCA 2005).

                                - 18 -
     That said, two overarching conceptual points about the

fundamental error doctrine are central to this case. First, a

defendant has no constitutional due process right to the correction

of unpreserved error. “No procedural principle is more familiar,”

the Supreme Court has observed, “than that a constitutional right,

or a right of any other sort, may be forfeited in criminal as well as

civil cases by the failure to make timely assertion of the right before

a tribunal having jurisdiction to determine it.” United States v.

Olano, 507 U.S. 725, 731 (1993) (citation omitted).

     Courts developed the fundamental error doctrine as a matter

of grace, not because of any entitlement on the part of criminal

defendants. We have said that an “appellate court should exercise

its discretion under the doctrine of fundamental error very

guardedly.” Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970)

(emphasis added). And we have explained: “The reason that courts

correct error as fundamental despite the failure of the parties to

adhere to procedural rules regarding preservation is not to protect

the interests of a particular aggrieved party, but rather to protect

the interests of justice itself.” Maddox, 760 So. 2d at 98.

                                 - 19 -
     The second overarching point is that there is no ironclad rule

that every preservation requirement must have an unwritten

exception allowing the appellate court to correct an unpreserved

error. For example, Rule of Appellate Procedure 9.140(e) says that

“[a] sentencing error may not be raised on appeal” unless preserved

by a contemporaneous objection or by filing a motion under Rule of

Criminal Procedure 3.800(b). In Jackson v. State, 983 So. 2d 562,

569 (Fla. 2008), we interpreted this rule to mean that “for

sentencing errors, to raise even fundamental errors on appeal,

defendants must first file a motion under rule 3.800(b).” There is

such a thing as a truly mandatory preservation requirement.

     With these considerations in mind, we can turn again to rule

9.140(b)(2)(A)(ii)(c). The Fourth District held that it could apply a

“fundamental error” exception in this case. For several reasons, we


     First, recall where rule 9.140(b)(2)(A)(ii)(c) came from. The rule

codified our decision in Robinson. And in Robinson we said that “an

appeal from a guilty plea should never be a substitute for a motion

to withdraw a plea.” 373 So. 2d at 902. If we were to recognize or

                                 - 20 -
create a fundamental-error exception in this case, we would be

contradicting ourselves.

       Second, a fundamental-error exception would be inconsistent

with this Court’s precedent interpreting the 1996 Act. In Leonard v.

State, 760 So. 2d 114, 116-17 (Fla. 2000), we held that the 1996

Act itself codified existing law as embodied in Robinson. We did

that even though the text of the 1996 Act says that a defendant who

pleads guilty or nolo contendere without reservation “may not

appeal the judgment or sentence.” § 924.051(4), Fla. Stat. (2020).

We reasoned that it was necessary to read Robinson into the statute

to avoid potential constitutional concerns. Leonard, 760 So. 2d at


       Given this Court’s construction of the 1996 Act, it is important

that we adhere to Robinson, including what it said about the need

to file a motion to withdraw plea. The 1996 Act expressly says:

       It is the intent of the Legislature that all terms and
       conditions of direct appeal and collateral review be
       strictly enforced, including the application of procedural
       bars, to ensure that all claims of error are raised and
       resolved at the first opportunity. It is also the
       Legislature’s intent that all procedural bars to direct
       appeal and collateral review be fully enforced by the
       courts of this state.

                                  - 21 -
§ 924.051(8), Fla. Stat. (Supp. 1996). Having committed ourselves

to the position that the Legislature adopted the 1996 Act against

the backdrop of Robinson, and indeed that the 1996 Act

incorporates Robinson, we cannot pick and choose which aspects of

Robinson to follow. We must honor the legislative mandate.

     Third, a fundamental-error exception would be inconsistent

with the underlying logic of Robinson and of the rule itself. For an

error to be considered “fundamental error,” it is generally necessary

(though not sufficient) that the error be of constitutional dimension.

Jackson, 983 So. 2d at 575. But every meritorious claim of an

involuntary plea involves constitutional error. “[I]f a defendant’s

guilty plea is not equally voluntary and knowing, it has been

obtained in violation of due process and is therefore void.” Bolware

v. State, 995 So. 2d 268, 272 (Fla. 2008) (quoting McCarthy v.

United States, 394 U.S. 459, 466 (1969)).

     In this context, then, a fundamental-error exception would

produce one of two outcomes. Either the “exception” would swallow

the rule; or the appellate courts of this state would need to develop

a set of standards—unavoidably unpredictable in application—to

distinguish “fundamentally erroneous” involuntary pleas from “non-

                                - 22 -
fundamentally erroneous” involuntary pleas. Neither outcome is


     Fourth, given the overall framework of the relevant rules of

procedure, a fundamental-error exception is simply unwarranted.

At the same time this Court codified Robinson in rule

9.140(b)(2)(A)(ii)(c), we took care to facilitate defendants’ compliance

with the rule’s preservation requirement. Specifically, we adopted

Rule of Criminal Procedure 3.170(l) to give defendants 30 days after

the rendition of sentence to file a motion to withdraw plea. That

makes the deadline for filing a motion to withdraw plea concurrent

with the deadline for filing a notice of appeal. We also coupled our

adoption of rule 9.140(b)(2)(A)(ii)(c) with an amendment to Rule of

Appellate Procedure 9.020(h), “to provide that a motion to withdraw

the plea after sentencing will postpone rendition until its

disposition.” 1996 Amendments, 696 So. 2d at 1106. We said we

were making these changes to be “[c]onsistent with the legislature’s

philosophy of attempting to resolve more issues at the trial court

level.” Id. at 1105. In light of the structure of these interlocking

rules of procedure, there is no justification for a fundamental-error

exception to rule 9.140(b)(2)(A)(ii)(c).

                                  - 23 -
     Finally, Dortch’s case proves the wisdom of requiring

involuntary plea claims to be addressed in the first instance by the

trial court, relatively close in time to the plea hearing. If the trial

court made a mistake here, it was easily correctable. A timely-filed

motion to withdraw plea would have allowed the parties and the

trial court to promptly clean up the messy record in this case and to

conduct any necessary competency proceedings. Instead, because

Dortch chose to ignore the governing rules of procedure, the Fourth

District found itself years after the fact asking the trial court to

reconstruct a record of Dortch’s competence at the time of his plea.


     Dortch makes several arguments in support of the Fourth

District’s decision, none of them persuasive.

     First, Dortch points to Rule of Appellate Procedure

9.140(b)(2)(A)(ii)(e), a catchall provision that allows direct appeals

from unreserved pleas “as otherwise provided by law.” As we have

explained, there is no law that authorizes Dortch’s direct appeal in

these circumstances. And in any event, we would not strain to

apply this catchall provision to an appeal that is covered by one of

                                  - 24 -
the circumstances (an involuntary plea) specifically listed in rule


     Second, Dortch invokes this Court’s decision in State v. T.G.,

800 So. 2d 204 (Fla. 2001). In T.G., we applied the fundamental

error doctrine to allow a direct appeal by a juvenile who, without

counsel, had pleaded guilty to felony charges. Id. at 212. We

concluded that T.G.’s plea was involuntary as a matter of law

because the trial court had not complied with the procedures

governing a juvenile’s waiver of counsel. Id. at 213. As to

preservation, we acknowledged that Robinson and the applicable

rules of procedure required T.G. to have first filed a motion to

withdraw plea. But out of a “unique concern for juveniles who

enter pleas without the benefit of counsel,” we found it “appropriate

to recognize a narrowly drawn and extremely limited exception to

Robinson.” Id.

     Our opinion went on to say: “We again emphasize that in all

other cases involving a challenge to the voluntariness of the plea,

including those cases where the appellate court cannot determine

the voluntariness of the waiver from the face of the record, the

procedure of Robinson should be followed.” Id.

                                - 25 -
     T.G. is easily distinguishable—Dortch is not a minor, he did

have counsel when he entered his plea, and our decision in T.G. did

not consider the statutory limitations on our authority in this area.

But on an even more basic level, without receding from T.G., we

reject its approach to creating ad hoc exceptions to rule

9.140(b)(2)(A)(ii)(c). Dortch’s appeal—and the Fourth District’s

decision—prove that no matter how emphatically a court stresses

that its reasoning is good-for-one-case-only, every exception begets

demands for more. We think it best to follow the text of rule

9.140(b)(2)(A)(ii)(c) and to heed our own admonition from T.G.

     Third, Dortch argues that we should not apply the

preservation requirement here because “unlike most challenges to

the voluntariness of a plea, trial courts are responsible for the

underlying error.” Again, we disagree. Beyond the problem of

asking us to create an ad hoc exception to the rule, this argument

is based on a flawed premise.

     The acceptance of pleas is governed by Rule of Criminal

Procedure 3.172, which “provides basic procedures to ensure that a

defendant’s rights are fully protected when he or she enters a plea

to a criminal charge.” Griffin v. State, 114 So. 3d 890, 900 (Fla.

                                - 26 -
2013). Like rule 3.210, rule 3.172 is animated by due process

concerns. Also like rule 3.210, rule 3.172 imposes obligations

directly on trial courts.

     Rule 3.172(a) makes it the trial judge’s responsibility to

determine that a plea is voluntary. To that end, rule 3.172 requires

the trial court to question the defendant about the nature of the

charge, the defendant’s right to representation, the right to trial by

jury and attendant rights, the effect of a plea, the terms of any plea

agreement, any deportation consequences resulting from the plea,

and other matters. Thus, in the context of appeals from potentially

involuntary pleas, confining a fundamental-error exception to

judge-caused errors would not be a limiting principle.

     Finally, Dortch argues that applying the rule’s preservation

requirement in these circumstances would be unjust. Dortch

worries that a potentially incompetent defendant would be left to

pursue postconviction relief without the assistance of counsel. We

are not unsympathetic to this concern.

     However, this argument does not supply a reason why we

would be authorized to depart from the governing law as we have

explained it. And even if our discretion were unbridled, we would

                                - 27 -
have to consider the positive ends that rule 9.140(b)(2)(A)(ii)(c)

serves, not just the potential consequences to an individual

defendant who does not comply with the rule. Faithfully applied,

the rule brings clarity and finality. It allows errors to be corrected

promptly and efficiently—a benefit not just to the criminal justice

system overall, but to defendants themselves. And the rule is fair,

particularly because the accompanying rule on motions to withdraw

a plea gives defendants ample opportunity to seek relief from error

before pursuing an appeal. Here we note that Dortch does not

dispute that he would have been entitled to the assistance of

counsel in filing a motion to withdraw his plea.

     To create an ad hoc exception in this case would contradict

governing law, spawn even more exceptions, and breed uncertainty.

We decline that invitation.


     We hold that there is no fundamental-error exception to the

preservation requirement of rule 9.140(b)(2)(A)(ii)(c). Accordingly,

we do not reach the question whether the trial court in this case

committed error. Nor do we express any view on the claims that

will be available to Dortch if he seeks collateral relief. We quash the

                                 - 28 -
decision under review and remand with instructions to affirm

Dortch’s convictions and sentences.

     It is so ordered.

CANADY, C.J., and COURIEL and GROSSHANS, JJ., concur.
LAWSON, J., dissents with an opinion, in which POLSTON and
LABARGA, JJ., concur.


LAWSON, J., dissenting.

     I agree with the majority that issues relating to a criminal

defendant’s competency are subsumed within the larger topic of the

voluntariness of the plea and are therefore expressly subject to the

preservation requirement of Florida Rule of Appellate Procedure

9.140(B)(2)(A)(ii)c. However, because due process dictates that we

recognize a fundamental-error exception to this rule, I would

approve the Fourth District Court of Appeal’s unanimous en banc

opinion, which reversed and remanded to the trial court for further

proceedings with the following instructions:

     The trial court may determine the defendant’s
     competence nunc pro tunc if possible. If the trial court
     cannot do so, the judgement and sentence should be
     vacated and the case set for trial.

                                - 29 -
Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th DCA 2018) (citation


     I analyze the issue as follows:


I. The trial court’s failure to follow Florida Rule of Criminal
Procedure 3.210 violated Dortch’s constitutional right to
procedural due process.

     It is first important to recognize that Dortch suffered the

deprivation of a fundamental constitutional right in the trial court.

This occurred when the trial court found a reasonable basis to

question Dortch’s competency7 and yet accepted Dortch’s guilty

plea without holding a competency hearing as required by Pate v.

Robinson, 383 U.S. 375, 378, 385-86 (1966) (holding that due

process8 requires that (1) a trial court must hold a competency

      7. The trial judge granted defense counsel’s motion “to
determine the mental condition of the defendant” and appointed a
doctor to examine Dortch for the purpose of determining Dortch’s
competency to proceed. The trial judge made this determination in
reliance on defense counsel’s representation in a motion that he
made the motion “in good faith and on reasonable grounds to
believe that the Defendant is incompetent to proceed.”

     8. See U.S. Const. amend. XIV, § 1 (“No State shall . . .
deprive any person of life, liberty, or property, without due process

                                - 30 -
hearing where the record reflects a bona fide doubt as to

defendant’s competence; and (2) that a state’s “procedures must be

adequate to protect this right”). 9

     Pate establishes that where the record reflects a bona fide

doubt as to a defendant’s competency, the trial judge must hold a

hearing before proceeding to any material stage of the criminal

proceeding. Pate, 383 U.S. at 385-86. It also holds that Florida’s

procedures “must be adequate to protect this right.” Id. at 378.

Rule 3.210 was promulgated to implement this procedural right and

expressly mandates that courts follow through with a competency

determination, before conducting any material stage of the criminal

proceeding, after finding a reasonable basis to question a

defendant’s competency. See Fla. R. Crim. P. 3.210(b) (“If, at any

material stage of a criminal proceeding, the court of its own motion,

of law . . . .”). Florida’s constitution also affords each person the
same protection. Art. I, § 9, Fla. Const.

      9. The majority rightly recognizes that Dortch’s claim is not a
substantive claim of incompetency but rather a claim that the trial
court denied him adequate procedures to protect his right not to be
tried while incompetent. Majority op. at 9; see Pate, 383 U.S. at

                                  - 31 -
or on motion of counsel for the defendant or for the state, has

reasonable ground to believe that the defendant is not mentally

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 . . . .”).

      Although trial courts have discretion in determining whether

reasonable grounds exist to believe a defendant to be incompetent,

Rodgers v. State, 3 So. 3d 1127, 1132 (Fla. 2009), they do not have

discretion to determine that reasonable grounds exist and then

proceed to a material stage of the proceeding without making the

required competency determination. Dougherty v. State, 149 So. 3d

672, 676 (Fla. 2014) (“Indeed, it is necessary for courts to observe

the specific hearing requirements set forth in [rules 3.210-3.212] in

order to safeguard a defendant’s due process right to a fair trial and

to provide the reviewing court with an adequate record on appeal.”).

      Therefore, rule 3.210 is tightly aligned with the due process

clause, as construed in Pate, to assure procedural due process for

potentially incompetent criminal defendants. Because of this tight

alignment—both require the same hearing under the same

                                    - 32 -
circumstance—a violation of the rule also constitutes a procedural

due process violation under Pate.

     That this violation occurred in Dortch’s case is not in

question. The question is whether Dortch can seek relief on appeal.

In my view, rule 3.210 and the due process right it was adopted to

protect are meaningless unless they can be enforced.

II. The Florida Constitution guarantees Dortch the right to a
meaningful appeal.

     Article V, section 4(b) of the Florida Constitution provides in

pertinent part that “[d]istrict courts of appeal shall have jurisdiction

to hear appeals, that may be taken as a matter of right, from final

judgments or orders of trial courts . . . not directly appealable to the

supreme court or a circuit court.” We have interpreted this

provision as affording criminal defendants a constitutional right to

an appeal. See McFadden v. State, 177 So. 3d 562, 566 (Fla. 2015)

(“Article V, section 4(b) [of the Florida Constitution], grants the

district courts jurisdiction to hear criminal appeals and affords

criminal defendants a constitutional right to an appeal.”); Harriel v.

State, 710 So. 2d 102, 103 (Fla. 4th DCA 1998) (“While our

supreme court has recognized that criminal defendants have no

                                 - 33 -
federal constitutional right to a direct appeal, under article V,

section 4(b) of the Florida Constitution, there is constitutional

protection of the right to appeal.”) (citations omitted). The

Legislature—and our rules of procedure—may place reasonable

conditions upon this right “so long as they do not thwart the

litigants’ legitimate appellate rights.” Amends. to the Fla. Rules of

App. Proc., 696 So. 2d 1103, 1104 (Fla. 1996).

     In addition to this limitation, by affording criminal defendants

a constitutional right to an appeal, the procedures used in deciding

direct appeals in Florida’s courts must comport with due process.

See Evitts v. Lucey, 469 U.S. 387, 393 (1985) (explaining that

although the United States Constitution “does not require States to

grant appeals as of right to criminal defendants seeking to review

alleged trial court errors,” if a State creates such a right, “the

procedures used in deciding appeals must comport with the

demands of the Due Process . . . Clause[] of the Constitution”).

     Accordingly, a criminal defendant’s due process right to a

direct appeal, as secured by Florida’s constitution, requires that a

defendant who is being deprived of freedom as punishment for

illegal conduct have a meaningful appeal during which any

                                 - 34 -
conviction secured through deprivation of a fundamental right can

be set aside and revisited in the trial court.

III. Applying rule 9.140(b)(2)(A)(ii)c.’s “preservation
requirement” would deny Dortch a meaningful appeal such
that, to satisfy due process on appeal, a fundamental-error
exception must be recognized.

     In this case, Dortch’s own trial counsel invited the due process

violation by asserting a bona fide basis to question Dortch’s

competency, securing the trial court’s finding adopting the

assertion, asking that a hearing not be set at the time of the

finding, and then scheduling the plea without first addressing

Dortch’s competency with the trial court. Both common sense and

a fair reading of Pate dictate that the trial counsel’s actions in

assuring the due process violation cannot at the same time cause

waiver of the issue on appeal.

     Common sense also dictates that it would not “comport with

the demands of the Due Process . . . Clause[],” Lucey, 469 U.S. at

393, to apply rule 9.140(b)(2)(A)(ii)c. as written, in this unique

context, because it would require a potentially incompetent

defendant to file his own pro se motion to withdraw plea to

“preserve” the issue. It should not require legal training to

                                 - 35 -
recognize the fundamental unfairness of a rule that would require

independent action by a potentially incompetent criminal defendant

before appointed appellate counsel can vindicate a clear violation of

the procedure constitutionally required to assure that the defendant

was competent to enter his plea in the first instance. Although

important constitutional rights may be waived, see majority op. at

13 (noting Dortch’s apparent waiver of rule 3.210(b)’s required

hearing within twenty days), an incompetent defendant cannot do


IV. It is irrelevant to the analysis that Dortch appeared
competent at the plea colloquy.

      It is apparent from this record that Dortch was very likely

competent at the time he entered his plea. One might therefore

naturally see no problem with enforcing the preservation

requirement in this case—where it seems very likely that the trial

court would be able to make a nunc pro tunc finding of competency

such that the plea would still stand; no harm, no foul. However,

Pate also involved a defendant represented by counsel who

appeared competent during colloquies with the trial judge. Those

colloquies occurred at a different material stage of the proceeding

                                - 36 -
(during trial for Pate versus during a plea for Dortch). However,

that factual difference is immaterial. See Godinez v. Moran, 509

U.S. 389, 391 (1993) (holding that the competency standard for

pleading guilty is the same as the competency standard for

standing trial). Because it is the procedural deprivation itself that

constitutes the constitutional violation, Pate properly held that the

procedural deprivation warranted a reversal, even though Pate

appeared competent at trial.

     Therefore, in this case, irrespective of whether it appears that

Dortch was fully competent, rule 3.210 does not allow counsel to

represent that his client is likely incompetent and then waive the

hearing requirement. 10 Nor does it allow a trial judge to order an

      10. By contrast, Florida Rule of Criminal Procedure 3.216
allows private counsel appointed or retained to represent a
defendant adjudicated to be indigent or partially indigent and who
“has reason to believe that the defendant may be incompetent to
proceed,” Fla. R. Crim. P. 3.216(a) (emphasis added), to request
appointment of a single expert to evaluate the defendant and
“report only to the attorney for the defendant,” id. Rule 3.216 then
leaves it to defense counsel to raise the issue of competency with
the trial court after receiving results from the confidential
evaluation, if there is a basis to do so. Id.; see Crosby v. State, 175
So. 3d 382, 383 (Fla. 5th DCA 2015) (explaining that trial courts
are not required to hold competency hearings after appointment of
an expert pursuant to rule 3.216 and “unless the defendant’s
attorney decides to actually raise the defense of insanity or assert

                                 - 37 -
evaluation without setting a competency hearing. Whether Dortch

was competent or incompetent at the time of his plea is irrelevant to

the legal issue presented. Rather, to vindicate his due process

right, as required by Pate, we must recognize a fundamental-error

exception to the preservation requirement as held by the Fourth


V. Recognizing a fundamental-error exception here is also
consistent with our case law recognizing a similar exception in
a comparable case.

     Our decision in State v. T.G., 800 So. 2d 204 (Fla. 2001),

further underscores that a fundamental-error exception must

apply. In T.G., we recognized an exception to a similar preservation

requirement for cases in which the record reflects that the trial

court failed to follow the procedural rule designed to assure that

incompetence to proceed, no further proceeding regarding the
defendant’s mental status is required by rule 3.216”). The motion
in this case cannot be fairly understood as a motion pursuant to
rule 3.216 because the motion states that it is made pursuant to
rule 3.210 and because counsel asserted a good faith basis for
believing that Dortch was actually incompetent, consistent with rule
3.210, and not simply that Dortch “may be incompetent,” as
required when seeking appointment of an expert pursuant to rule
3.216. In addition, although Dortch had been adjudicated to be
indigent, he was not represented by an appointed private counsel.

                                - 38 -
waivers of counsel are made freely and voluntarily before accepting

the plea. Id. at 211-12. We reasoned as follows:

           Because of this unique concern for juveniles who
     enter pleas without the benefit of counsel, we find that it
     is appropriate to recognize a narrowly drawn and
     extremely limited exception [to the general preservation
     requirement in this context]. “Fundamental error” occurs
     in instances when juveniles enter uncounseled pleas
     where the trial court failed to comply with the
     requirements of rule 8.165. In these circumstances if the
     waiver of counsel is invalid as a matter of law, it follows
     that the guilty plea entered without advice of counsel
     should also be deemed involuntary as a matter of law.
     Thus, if it appears from the face of the record that the
     trial court did not comply with the specific procedures of
     rule 8.165, including conducting a “thorough inquiry into
     the child’s comprehension of that offer [of the assistance
     of counsel] and the capacity to make that choice
     intelligently and understandingly,” any subsequent plea
     should be deemed involuntary as a matter of law and the
     appellate court would have the authority to reverse
     absent a motion to withdraw or a contemporaneous

Id. at 213 (second alteration in original).

     Similarly, there are unique concerns related to individuals

whose competence is called into question and procedural rules that

judges must follow to protect defendants’ constitutional rights when

these concerns are present. “While not all errors of constitutional

magnitude constitute fundamental error,” id. at 212, an error in

failing to hold a due-process-required competency hearing before

                                 - 39 -
accepting a plea “goes to the foundation of the case,” Jaimes v.

State, 51 So. 3d 445, 448 (Fla. 2010) (quoting Sanford v. Rubin, 237

So. 2d 134, 137 (Fla. 1970)), because it constitutes a denial of the

very process that Florida has implemented to assure that

defendants have the mental capacity to understand the proceedings

against them after their competence is reasonably questioned by

the court.

     The majority’s rejection of the approach we took in T.G.

because “every exception begets demands for more,” majority op. at

25-26, misses the point. 11 Pate appropriately placed the burden on

trial judges to protect a defendant whose competence a judge has

reason to question. Pate, 383 U.S. at 385; see also id. at 388

(Harlan, J., dissenting) (agreeing with the general proposition that

when a defendant’s incompetence has become “sufficiently

manifest,” it “denies [a defendant] due process for the trial court to

     11. Contrary to the majority’s assertion that allowing Dortch’s
claim to be heard on direct appeal would “spawn even more
exceptions . . . and breed uncertainty,” majority op. at 28, an
exception would only be necessary in the rare case where, as here,
the record reflects a bona fide question as to the defendant’s

                                - 40 -
fail to conduct a hearing on that question on its own initiative”)

(emphasis added). Accordingly, appellate counsel should be able to

seek relief on appeal when a trial judge does not fulfill his obligation

to hold a required competency hearing.

     I also disagree with the majority’s conclusion that a

fundamental-error exception is unwarranted here “given the overall

framework of the relevant rules of procedure.” Majority op. at 22.

Enacting a rule similar to Florida Rule of Criminal Procedure

3.800(b)(2), the rule discussed by the majority, would allow trial

courts to address noncompliance with rule 3.210 while protecting

the due process rights of defendants who lack the mental capacity

to enter a plea. Rule 3.800(b)(2) allows appellate counsel to file a

motion to correct a sentencing error in the trial court after trial

counsel files a notice of appeal. Appellate counsel must serve the

motion in the trial court “before the party’s first brief is served,” and

counsel is also required to file a “notice of pending motion to correct

sentencing error . . . in the appellate court, which notice

automatically shall extend the time for the filing of the brief until 10

days after the clerk of circuit court transmits the supplemental

                                 - 41 -
record” of the proceedings on the motion to correct sentencing

error. Fla. R. Crim. P. 3.800(b)(2).

     It is only because rule 3.800(b)(2) gives appellate counsel the

tools needed to have sentencing errors corrected by the trial court—

during the appeal—that we can preclude raising a fundamental

sentencing error in the initial brief, as we did in Jackson v. State,

983 So. 2d 562 (Fla. 2008), and still comply with a defendant’s due

process right to a meaningful appeal.

     Of course, Dortch’s appellate counsel did not have the benefit

of a rule such as 3.800(b)(2), and where, as in Dortch’s case, there

is a bona fide issue of the defendant’s mental competency apparent

on the face of the record, it is wholly inadequate, and violative of

due process, to bar appellate counsel from raising, on direct appeal,

the trial court’s failure to comply with rule 3.210. Such a bar

leaves the potentially incompetent defendant to seek relief years

later, without the benefit of counsel, after suffering a prolonged

deprivation of liberty.

     Moreover, if incompetent, the defendant would be

extraordinarily unlikely to vindicate the due process violation

suffered, particularly in light of our precedent requiring claims

                                 - 42 -
regarding competency to be raised on direct appeal. See Nelson v.

State, 43 So. 3d 20, 33 (Fla. 2010) (explaining that the defendant’s

claim that he was tried and convicted while mentally incompetent

was “procedurally barred because he failed to raise it on direct


     Therefore, the majority’s decision leaves potentially

incompetent defendants like Dortch with no effective remedy.


     Today’s decision renders our procedures effectively inadequate

to protect the due process right recognized in Pate by barring

appellate counsel from seeking relief on appeal where the trial court

does not fulfill its obligation under rule 3.210 to hold a required

competency hearing, proceeds to accept a plea, and the potentially

incompetent defendant does not move to withdraw the plea. While

it appears from the record that Dortch did possess the necessary

mental capacity to enter his plea voluntarily, that satisfies neither

the procedural requirements of rule 3.210 nor the constitutional

right that the rule is designed to protect. For these reasons, I would

approve the Fourth District’s decision and its remand instructions.

POLSTON and LABARGA, JJ., concur.

                                - 43 -
Application for Review of the Decision of the District Court of Appeal
– Certified Direct Conflict of Decisions

     Fourth District - Case Nos. 4D16-2815 and 4D16-2816

     (Okeechobee County)

Ashley Moody, Attorney General, Tallahassee, Florida, Celia
Terenzio, Bureau Chief, and Joseph D. Coronato, Jr., Assistant
Attorney General, West Palm Beach, Florida,

     for Petitioner

Carey Haughwout, Public Defender, and Benjamin Eisenberg,
Assistant Public Defender, Fifteenth Judicial Circuit, West Palm
Beach, Florida,

     for Respondent

                                - 44 -

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