          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4038
                 _____________________________

LEON AKINS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                          May 25, 2018


RAY, J.

     Leon Akins appeals the summary denial of his motion for
postconviction relief, which raised multiple claims of ineffective
assistance of trial counsel. We agree with the postconviction
court’s thorough assessment of all but one of his claims. For the
reasons discussed below, we reverse the denial of ground two of
the motion.

     Akins was convicted of first-degree murder, attempted first-
degree murder, grand theft, and arson of a vehicle. He was
sentenced to life in prison and his convictions and sentences were
affirmed on appeal. Akins v. State, 181 So. 3d 486 (Fla. 1st DCA
2015).
     Akins filed his motion for postconviction relief under Florida
Rule of Criminal Procedure 3.850. In ground two of his motion,
Akins alleged that counsel was ineffective for failing to
investigate his sanity at the time of the offense and his
competency to stand trial. He notes that prior to trial, his
attorney filed a motion requesting the appointment of a mental
health expert to evaluate Akins and report on “certain mental
health issues.” Counsel stated in the motion that she and co-
counsel had met with Akins in jail on several occasions and that
he “evince[d] serious mental problems.” The motion recited that
Akins has a long history of criminal offenses and a history of drug
abuse, he appears to have serious cognitive learning disabilities,
he has been previously detained under the Baker Act, and he has
difficulty recalling the events leading up to the charges against
him such that “he may have been suffering from a mental illness
that rendered him unable to know right from wrong at the time
of the offense.”

     The trial court granted the motion and appointed a mental
health expert to determine (a) whether Akins was sane at the
time of the crime, (b) whether Akins was intellectually disabled,
and (c) whether there were mental health mitigators under
section 921.141, Florida Statutes. In his postconviction claim,
Akins asserts that the mental health examination never took
place and there was never a hearing or determination concerning
his sanity or competency. He alleges he was prejudiced because
he was incompetent to stand trial and would have been declared
insane at the time the offense was committed.

     A claim that counsel failed to investigate a defendant's
mental health or seek a competency determination is cognizable
in a rule 3.850 motion. Jackson v. State, 29 So. 3d 1161, 1162
(Fla. 1st DCA 2010). Where no evidentiary hearing is held below,
we must accept the defendant's factual allegations in the motion
as true to the extent they are not refuted by the record. Peede v.
State, 748 So. 2d 253, 257 (Fla. 1999).

     Here, we conclude that Akins’s claim is facially sufficient as
his motion demonstrates that his attorney had serious concerns
regarding his sanity and competency, yet allegedly failed to
follow through with the mental health evaluation authorized by

                                2
the court. See Jackson, 29 So. 3d at 1162 (holding that claim that
counsel was ineffective for failing to investigate competency or
request competency hearing was facially sufficient where
defendant alleged he had a long history of mental illness, had not
taken schizophrenia medications, and was suffering from
delusions and hearing voices at time of plea); Williams v. State,
46 So. 3d 118, 118-19 (Fla. 1st DCA 2010) (holding that claim
that attorney was ineffective for failing to adequately investigate
his mental health was facially sufficient where defendant alleged
a history of mental health issues including severe depression and
insomnia, for which he was taking multiple medications that
affected his competency); cf. Coker v. State, 978 So. 2d 809, 810
(Fla. 1st DCA 2008) (holding that defense counsel's failure to
draft an order for mental evaluation of the defendant after
obtaining the judge's oral authorization amounted to ineffective
assistance of counsel). Because the limited record before us does
not refute Akins’s facially sufficient claim, we reverse the
summary denial of ground two and remand for the postconviction
court either to attach record excerpts that refute the claim or to
hold an evidentiary hearing on the claim. We affirm the denial of
the remaining claims.

     AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings.

ROWE and MAKAR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Leon Akins, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Anne C. Conley and
Jason W. Rodriguez, Assistant Attorneys General, Tallahassee,
for Appellee.


                                 3
