DEMARCO v. State

31 So. 3d 975, 2010 Fla. App. LEXIS 5040, 2010 WL 1507828

Opinion

NORTHCUTT, Judge.

Heath A. Demarco seeks review of a final order denying his motion for postcon-viction 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 post-conviction 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, De- marco’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. Slate, 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 Demar-co’s motion and remand for further proceedings.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.