# Bernard J. Dougherty v. State of Florida

> Supreme Court of Florida · October 16, 2014 · 39 Fla. L. Weekly Supp. 636

URL: https://www.frixlaw.com/law-library/cases/9804409

## Case

- **Full name:** Bernard J. DOUGHERTY, Petitioner, v. STATE of Florida, Respondent
- **Court:** Supreme Court of Florida
- **Decided:** October 16, 2014
- **Citations:** 39 Fla. L. Weekly Supp. 636; 149 So. 3d 672; 2014 Fla. LEXIS 3071; 2014 WL 5285933
- **Precedential status:** Published
- **Opinion:** Dissent by Canady
- **Judges:** Labarga, Pariente, Lewis, Quince, Perry, Canady, Polston
- **Cited by:** 150 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9804409

## How later opinions describe it (automated extraction)

- reasoning that a defendant cannot stipulate to his own competency even where the experts’ written reports agree because “[e]ven in a situation where all the experts opine that a defendant is competent,1 the trial court could presumably disagree based on-’other evidence such as…
- 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 Maso…
- 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’”
- holding if a trial court finds that a defendant is competent to proceed, it must enter a written order so finding, and in which case the State conceded that entry of an order under the rule refers to entry of a written order as opposed to an oral pronouncement.

## Opinion text

CANADY, J.,
dissenting.
Although I agree that the Court has express and direct conflict jurisdiction, I would nonetheless discharge this case.
*680 The majority correctly recognizes that Dougherty’s incompetency claim is a claim of trial court error that is not cognizable in a postconviction proceeding. The majority’s discussion of the incompetency issue— which is the basis for our conflict jurisdiction — thus constitutes an abstract legal discussion that has no application to the case on review. The majority effectively acknowledges this when it observes that it does “not address application of our holding to the specific circumstances of his case.” Majority op. at 676. “Judicial declaration, unaccompanied by judicial application, is of no authority.-” John W. Sal-mond, The Theoi*y of Judicial Precedents, 16 L.Q. Rev. 376, 389 (1900). Because what the Court says here on the conflict issue has no application in this case, the Court should refrain from saying it. The subject of the conflict should be resolved in a future case when it is properly at issue.
Accordingly, I dissent.
POLSTON, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9804409. Public record. Not legal advice.