From Casetext: Smarter Legal Research

Demarco v. State

District Court of Appeal of Florida, Second District
Apr 16, 2010
31 So. 3d 975 (Fla. Dist. Ct. App. 2010)

Opinion

No. 2D09-4131.

April 16, 2010.

Appeal pursuant to Fla.R.App.P. 9.141(b)(2) from the Circuit Court for Manatee County; Gilbert A. Smith, Jr., 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 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, 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.


Summaries of

Demarco v. State

District Court of Appeal of Florida, Second District
Apr 16, 2010
31 So. 3d 975 (Fla. Dist. Ct. App. 2010)
Case details for

Demarco v. State

Case Details

Full title:Heath A. DEMARCO, Appellant v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Apr 16, 2010

Citations

31 So. 3d 975 (Fla. Dist. Ct. App. 2010)

Citing Cases

Watts v. State

In claim two of Watts's amended 3.850 motion, he alleged that trial counsel was ineffective for failing to…

Turem v. State

A claim that counsel failed to investigate a defendant's mental health and failed to seek a competency…