KENNETH EUGENE PRESLEY, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Presley appeals the summary denial of his post-conviction motion alleging ineffective assistance of privately retained counsel. The court reverses, holding that Cuyler v. Sullivan establishes that ineffective assistance claims apply to both retained and appointed counsel, and remands for an evidentiary hearing on whether Presley received reasonably effective assistance.
The court holds that ineffective assistance of privately retained counsel, as established in Cuyler v. Sullivan, can provide grounds for post-conviction relief. Presley's motion is legally sufficient on its face because the record appears to support his allegation that he did not receive reasonably effective assistance, given that counsel misadvised him about voluntary intoxication as a defense to burglary.
[1] Ineffective assistance of privately retained counsel, as well as appointed counsel, can provide grounds for post-conviction relief.
[2] Voluntary intoxication can be a defense to specific intent crimes.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A proper respect for the Sixth Amendment disarms petitioner's contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel.”
Establishes that retained and appointed counsel receive equal Sixth Amendment protection
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Join FLexlaw to unlock all legal intelligencePresley was charged with five counts of criminal conduct. He pleaded guilty to burglary and aggravated battery after the remaining counts were nolle p…
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[*1386] RYDER, Judge.
Kenneth E. Presley, Sr. appeals the trial court’s summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Presley alleges that he was denied effective assistance of counsel in that his privately retained counsel provided him with misleading advice in order to obtain a guilty plea. The circuit court summarily denied the motion based on Cappetta v. Wainwright, 203 So. 2d 609 (Fla.1967),1 wherein the court held that inadequacy of privately retained counsel cannot provide the basis for post-conviction relief.
The trial court was without benefit of a recent United States Supreme Court decision, Cuyler v. Sullivan, ___ U.S. ___, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), wherein the court held that ineffective assistance of privately retained counsel, as well as appointed counsel, can provide grounds for federal habeas corpus relief. In that opinion, written by Justice Powell, the Court reasoned:
A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. ... Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.
100 S.Ct. at 1716.
Applying Cuyler v. Sullivan, supra, we find that appellant’s motion is legally sufficient on its face. Accordingly, we have reviewed the record in this case and have discerned the following facts.
Presley was charged by information with five counts of criminal conduct. After negotiation, he pled guilty to Counts I and II, burglary and aggravated battery, and the State nolle prossed the remaining counts. At the hearing on appellant’s plea, the following colloquy transpired:
THE COURT: Do we have a psychological on this defendant?
MR. MARS: I received a psychological report and the conclusion was Mr. Presley was in an alcoholical blackout. I do not have the report with me.
THE COURT: Who gave it?
MR. MARS: Dr. Hodge.
THE COURT: Did he determine that Mr. Presley was able to assist you in this?
MR. MARS: It is not reflected in the report, but it is reflected in the conversation I had with Dr. Hodge. I explained to Mr. Presley that voluntary intoxication is not a defense in these matters.
Voluntary intoxication is a defense to specific intent crimes,2 and burglary is a specific intent crime.3 Consequently, the record appears to support appellant’s allegation that he did not receive reasonably effective assistance of counsel.4
As the record does not show that appellant is entitled to no relief, the order denying post-conviction relief is reversed and the case is remanded for an evidentiary hearing on whether appellant received reasonably effective assistance of counsel.
BOARDMAN, Acting C. J., and OTT, J., concur. . The Florida Supreme Court has not yet had an opportunity to recede from Cappetta v. Wainwright, supra, but we anticipate that action being taken in light of Cuyler v. Sullivan, supra, and act accordingly.
. Britts v. State, 158 Fla. 839, 30 So. 2d 363 (1947).
. Porter v. State, 341 So. 2d 1017 (Fla.2d DCA 1977), cert. denied, 352 So. 2d 173 (Fla.1977).
. The Florida Supreme Court receded from its prior standard of “farce and mockery” and instituted a new standard of “reasonably effective assistance of counsel” in Meeks v. State, 382 So. 2d 673 (Fla.1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Linehan v. State, 476 So. 2d 1262 (Fla. 1985)…19 So. 2d 1198 (Fla.1982) (burglary and battery); Graham v. State, 406 So. 2d 503 (Fla. 3d DCA 1981) (robbery); Mellins v. State, 395 So. 2d 1207 (Fla. 4th DCA), review denied, 402 So. 2d 613 (Fla.1981) (battery on police officer); Presley v. State, 388 So. 2d 1385 (Fla. 2d DCA 1980) (burglary); Fouts v. State, 374 So. 2d 22 (Fla. 2d DCA 1979) (escape from protective custody), overruled on other grounds, Parker v. State, 408 So. 2d 1037 (Fla.1982). Florida courts have rejected the voluntary intoxication defen…
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Chestnut v. State, 538 So. 2d 820 (Fla. 1989)…. State v. Allen, 362 So. 2d 10 (Fla.1978). Apparently, the same would be true for battery, Mellins v. State, 395 So. 2d 1207 (Fla. 4th DCA), review denied, 402 So. 2d 613 (Fla.1981). Since burglary is also a specific intent crime, Presley v. State, 388 So. 2d 1385 (Fla. 2d DCA 1980), one acquitted of that offense could only be convicted, if at all, of trespass. Unlike the case where one is found not guilty by reason of insanity, there would be no authority to commit these persons for treatment except through…
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Clement Lemmon Edwards v. State, 393 So. 2d 597 (Fla. 3d DCA 1981)…that the fact that Edwards’ counsel was of his own choosing is no longer an impediment to relief.4 Cuyler v. Sullivan, supra; Blatch v. State, 389 So. 2d 669 (Fla. 3d DCA 1980); Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980); Presley v. State, 388 So. 2d 1385 (Fla. 2d DCA 1980); Chambers v. State, 388 So. 2d 1259 (Fla. 2d DCA 1980); State v. Dukes, 388 So. 2d 651 (Fla. 2d DCA 1980). Accordingly, we hold that Edwards’ motion to vacate his conviction and set aside his plea of guilty, insofar as it attacke…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)
- Britts v. State, 158 Fla. 839 (Fla. 1947)
- Porter v. State, 341 So. 2d 1017 (Fla. 2d DCA 1977)