Irving v. State , 741 So. 2d 519 ( 1999 )

741 So.2d 519 (1999)

Marlin Doren IRVING, Appellant,
v.
STATE of Florida, Appellee.

No. 98-04891.

District Court of Appeal of Florida, Second District.

June 4, 1999.

PER CURIAM.

Marlin Irving appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find that Irving has stated a facially sufficient claim that his plea was involuntary due to his incompetency and that his attorney was ineffective in failing to investigate this. See, e.g., Savage v. State, 530 So.2d 1077 (Fla. 1st DCA 1988); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). Therefore, we reverse and remand for further proceedings. We note that the court may again deny Irving's motion if it is conclusively refuted by the record, but point out that mere affirmative responses by Irving during the plea colloquy may not be sufficient to conclusively refute his claim of incompetence. See Savage, 530 So.2d at 1079.

We also specifically reverse the portion of the trial court's order finding Irving's motion frivolous and declaring that the Department of Corrections would be justified in forfeiting Irving's gaintime as a sanction. See, e.g., Mercade v. State, 698 So.2d 1313 (Fla. 2d DCA 1997) (defining a frivolous claim as one that is so devoid of merit on its face that there is little prospect that it can ever succeed).

Reversed and remanded.

BLUE, A.C.J., and NORTHCUTT and GREEN, JJ., Concur.