SCOTT DAVID KENNEDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to an evidentiary hearing if counsel provided incorrect advice regarding the voluntary intoxication defense to a specific intent crime, potentially allowing withdrawal of a guilty plea.
The defendant pleaded guilty to strong-armed robbery and later sought post-conviction relief, alleging his trial counsel incorrectly advised him that …
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PER CURIAM.
Scott Kennedy appeals the summary denial of his motion for post-conviction relief from his plea to strong-armed robbery. Fla. R.Crim.P. 3.850. One ground raised in the motion warrants an evidentiary hearing.
Kennedy argues that trial counsel’s failure to correctly advise him on the defense of voluntary intoxication influenced his decision to enter a guilty plea. Attached to the motion are affidavits alleging that Kennedy was under the influence of crack cocaine at the time of the robbery. Kennedy contends that trial counsel told him that his intoxication at the time of the robbery did not constitute a legal defense because it was voluntary.
The correct statement of the law is that voluntary intoxication is a valid defense to a specific intent crime. Linehan v. State, 476 So. 2d 1262 (Fla.1985). Robbery being a specific intent crime, counsel’s alleged advice was incorrect. Bell v. State, 394 So. 2d 979 (Fla.1981). If the allegation in the motion is true, Kennedy should be given the opportunity to withdraw his plea and proceed to trial, where he potentially faces a sentence of thirty years in prison as a habitual felony offender. We therefore reverse the summary denial of post-conviction relief on the ground discussed above and remand for an evidentiary hearing to ascertain whether counsel misstated the defense of involuntary intoxication. We affirm the order in all other respects.
Reversed and remanded.
RYDER, A.C.J., and THREADGILL and BLUE, JJ., concur.
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Frey v. State, 708 So. 2d 918 (Fla. 1998)…Gardner v. State, 480 So. 2d 91, 92 (Fla.1985) (first-degree murder is a specific intent crime); Cirack v. State, 201 So. 2d 706 (Fla.1967) (same). . See Bell v. State, 394 So. 2d 979 (Fla.1981) (robbery is specific intent crime); Kennedy v. State, 633 So. 2d 1145 (Fla. 2d DCA 1994) (same). . See Heddleson v. State, 512 So. 2d 957, 959 (Fla. 4th DCA 1987) (kidnapping is a specific intent crime). . See Bartley v. State, 689 So. 2d 372, 373 (Fla. 1st DCA 1997) (aggravated assault is specific intent crime); Do…
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Seraphin v. State, 706 So. 2d 913 (Fla. 4th DCA 1998)…allegations that counsel failed to advise him of this defense were sufficient to set forth a claim of ineffective assistance, see Worden v. State, 688 So. 2d 958 (Fla. 4th DCA 1997), which may entitle him to withdraw his plea, see Kennedy v. State, 633 So. 2d 1145 (Fla. 2d DCA 1994). The summary denial of such an allegation requires record attachments refuting it or an eviden-tiary hearing. See McCoy v. State, 598 So. 2d 169 (Fla. 1st DCA 1992). The plea colloquy attached to the order of denial did not refute…
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Straitwell v. State, 834 So. 2d 918 (Fla. 2d DCA 2003)…1998). This court has stated that an evi-dentiary hearing is warranted to determine whether counsel was ineffective for giving incorrect advice to a defendant regarding the viability of the defense of involuntary intoxication. See Kennedy v. State, 633 So. 2d 1145, 1145 (Fla. 2d DCA 1994). Similarly, whether counsel was ineffective for failing to discuss and explore with a defendant the possibility of utilizing a voluntary intoxication defense is appropriately determined through an evidentia- [*921] ry hearin…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Linehan v. State, 476 So. 2d 1262 (Fla. 1985)
- Bell v. State, 394 So. 2d 979 (Fla. 1981)