KEITH EDWARD KISER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that allegations of trial counsel's failure to present a relevant videotape are legally sufficient to state a claim for ineffective assistance of counsel, requiring an evidentiary hearing or record support for denial.
[1] Voluntary intoxication is a defense to the specific intent crime of robbery.
[2] Allegations that trial counsel failed to present exculpatory evidence are legally sufficient to state a claim for ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligenceAn inmate sought post-conviction relief, claiming his trial counsel was ineffective for failing to present a surveillance videotape of the robbery. Ap…
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PER CURIAM.
Appellant, an inmate of the state correctional system, seeks review of an order denying his motion seeking post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Of the claims made by appellant, only one merits discussion.
Appellant asserts that his trial counsel was ineffective because he failed to present as evidence a surveillance videotape of the robbery of which appellant was convicted. According to appellant, had the videotape been played for the jury, his defense of voluntary intoxication would have been established, and he would not have been convicted of armed robbery. The trial court summarily denied this claim, stating that the decision not to use the videotape had been “a strategic choice by counsel.” The order has no attachments.
Robbery is a specific intent crime, to which voluntary intoxication is a defense. Gardner v. State, 480 So. 2d 91 (Fla.1985). Accordingly, we conclude that appellant’s allegations regarding trial counsel’s failure to offer the videotape in evidence are legally sufficient to state a claim for relief based on ineffective assistance of counsel.
The trial court denied relief based on its conclusion that the decision not to offer the videotape in evidence “was a strategic choice by counsel.” That conclusion is not supported by attachment of any portions of the record. “Generally, an evidentiary hearing is required to determine whether action or inaction by trial counsel was a tactical decision for which no relief can be granted.” Williams v. State, 647 So. 2d 996, 997 (Fla. 1st DCA 1994). Accordingly, we reverse as to this ground only. On remand, the trial court shall either attach to its order again denying relief those portions of the record which conclusively demonstrate that appellant is entitled to no relief, or hold an evidentiary hearing. In all other respects, the order denying relief is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
MINER, WEBSTER and MICKLE, JJ., concur.
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Lancelot Uriley Armstrong v. State, 73 So. 3d 155 (Fla. 2011)…to answer the jury question and instead informed the jury that it would have to depend on the evidence and the instructions. Id. at 1015. Additionally, the instant ease does not contain the “peculiar facts” that were present in Hitchcock v. State, 678 So. 2d 859, 863 (Fla.1996) (concluding that the State’s argument that Hitchcock would be eligible for parole after twenty-five years was misleading and prejudicial due to the close proximity of the expiration of his sentence and his resentencing). Furthermore…
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Hester v. State, 732 So. 2d 331 (Fla. 1st DCA 1998)…ing that such a defense would not have changed the outcome. Voluntary intoxication is a recognized defense to the specific intent crimes of kidnapping and armed robbery. E.g., Hylleberg v. State, 700 So. 2d 807 (Fla. 5th DCA 1997); Kiser v. State, 678 So. 2d 859 (Fla. 1st DCA 1996). We have previously held that allegations substantively indistinguishable from those made by appellant are facially sufficient to state a claim for ineffective assistance of counsel. Brunson v. State, 605 So. 2d 1006 (Fla. 1st DC…1 / 2
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Thomas v. State, 734 So. 2d 1138 (Fla. 1st DCA 1999)…hough we affirm the summary denial of the second claim, we find that the first claim raises a facially sufficient allegation. Thomas pled guilty to robbery, a specific intent crime for which voluntary intoxication is a defense. See Kiser v. State, 678 So. 2d 859 (Fla. 1st DCA 1996). In his motion, Thomas alleged that trial counsel failed to investigate and advise on the defense of voluntary intoxication, despite being told that Thomas had consumed large quantities of alcohol and crack cocaine prior to the c…
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
- Gardner v. State, 480 So. 2d 91 (Fla. 1985)
- Williams v. State, 647 So. 2d 996 (Fla. 1st DCA 1994)