DEMARCO v. State

31 So. 3d 975 (2010)

Heath A. DEMARCO, Appellant,
v.
STATE of Florida, Appellee.

No. 2D09-4131.

District Court of Appeal of Florida, Second District.

April 16, 2010.

NORTHCUTT, Judge.

Heath A. Demarco seeks review of a final order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Demarco raises one claim of ineffective assistance of counsel for counsel's failure to raise the issue of Demarco's competency to participate in the legal proceedings. The postconviction court construed Demarco's claim as one raising trial court error in failing to make a determination of incompetency and found the claim procedurally barred. See Whitfield v. State, 923 So. 2d 375, 379 (Fla.2005); Marshall v. State, 854 So. 2d 1235, 1248 (Fla.2003). However, Demarco's claim appears on its face to be an ineffective assistance of counsel claim, and the narrow argument that counsel was ineffective for failing to raise a defendant's competency is cognizable in a rule 3.850 motion. See Carroll v. State, 815 So. 2d 601, 610 (Fla.2002); Schultheis v. State, 12 So. 3d 811, 812 (Fla. 1st DCA 2009). Accordingly, we reverse the denial of Demarco's motion and remand for further proceedings.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.