KEVIN WHITTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kevin Whitty appealed the denial of his postconviction relief motion in three criminal cases, arguing that his defense counsel was ineffective for failing to pursue a voluntary intoxication defense and that his guilty plea was involuntary based on counsel's misadvice. The court reversed and remanded for an evidentiary hearing on two cases (robbery and burglary) while affirming the denial as to the grand theft charge.
The court reversed the trial court's denial of postconviction relief and remanded for an evidentiary hearing on the robbery and burglary charges, as voluntary intoxication is a valid defense to both crimes and the record attachments did not conclusively demonstrate Whitty was not entitled to relief. The court affirmed the denial as to the grand theft charge because Whitty failed to allege he informed counsel of his desire to pursue the defense or that he was intoxicated at the time of that offense.
[1] Voluntary intoxication can be a defense to burglary.
[2] Voluntary intoxication can be a defense to robbery.
Previewing 2 of 5 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“Voluntary intoxication is a defense to burglary. Urquhart v. State, 676 So.2d 64 (Fla. 1st DCA 1996). It is also a defense to robbery. Kiser v. State, 678 So.2d 859 (Fla. 1st DCA 1996).”
Establishes that voluntary intoxication is a recognized and valid defense to both robbery and burglary charges, supporting Whitty's entitlement to an evidentiary hearing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn August 1994, Whitty pleaded guilty to robbery, burglary of a conveyance, and grand theft. The burglary and robbery occurred on the same day, while …
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PER CURIAM.
Kevin Whitty challenges the trial court’s order denying his motion for postconviction relief in three cases. We reverse the order as it pertains to two of the cases and remand for an evidentiary hearing on those eases. We affirm the trial court’s order as it pertains to the third ease.
In August 1994, Whitty pleaded to robbery (trial court case number 93-1080), burglary of a conveyance (trial court case number 93-1079) and grand theft (trial court case number 94-1714). Whitty’s motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, states that the burglary and robbery were committed on the same day and that the grand theft was committed a year earlier. Whitty alleged that defense counsel was ineffective for failing to pursue a defense of voluntary intoxication and that his plea was involuntary because counsel informed him that said defense was not applicable to the charges of robbery and burglary.
The trial court’s order found that Whitty failed to make a showing that the defense of voluntary intoxication was available to him and that he failed to establish that such a defense would have led to a different result at trial. The order did not address Whitty’s claim that his plea was involuntary because it was based on the misadvice of counsel. The order notes that Whitty’s statement to the police, along with the robbery victim’s statement and the statement of a witness who was with Whitty immediately prior to the robbery, shows no evidence of intoxication.
However, a review of the record attachments indicates that the robbery occurred at approximately 1:00 a.m. and that Whitty told the detective interviewing him that on the day before the robbery he was “smoking crack all day.” Whitty also told the detective that he ingested crack cocaine immediately after the robbery.
Whitty’s allegation that trial counsel failed to pursue a defense of voluntary intoxication with regard to the grand theft charge is facially insufficient. Whitty does not allege that he informed his defense attorney he wished to pursue said defense on that charge. Nor does he allege that he advised his attorney he was under the influence of alcohol or drugs at the time of his arrest or that the circumstances surrounding the offense would have provided corroboration of his intoxicated state, as did the defendant in Wright v. State, 675 So. 2d 1009 (Fla. 2d DCA 1996).
Regarding the burglary and the robbery charges, in his motion Whitty alleges that his attorney was advised of his desire to pursue a defense of voluntary intoxication. Voluntary intoxication is a defense to burglary. Urquhart v. State, 676 So. 2d 64 (Fla. 1st DCA 1996).
It is also a defense to robbery. Kiser v. State, 678 So. 2d 859 (Fla. 1st DCA 1996).
Because the attachments fail to demonstrate conclusively that Whitty is not entitled to relief on his claim that defense counsel failed to pursue a defense of voluntary intoxication, we remand for an evidentiary hearing on that claim. See Young v. State, 661 So. 2d 406 (Fla. 1st DCA 1995).
Whitty is also entitled to an evidentiary hearing on his claim that his plea was involuntarily entered because defense counsel advised him that voluntary intoxication is not a defense to burglary or robbery. See Hock v. State, 679 So. 2d 847 (Fla. 2d DCA 1996) (explaining that, if not refuted by record attachments, an evidentiary hearing is required where the claim is that the plea was involuntarily entered based on incorrect legal advice of defense counsel).
Affirmed in part, reversed in part, and remanded.
DANAHY, A.C.J., and PATTERSON and WHATLEY, J., concur.
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Richardson v. State, 723 So. 2d 910 (Fla. 1st DCA 1999)…he charge of burglary. Appellant states that had he been advised of the existence of the defense, he would have elected to proceed to a jury trial. Burglary is a specific intent crime for which voluntary intoxication is a defense. Whitty v. State, 687 So. 2d 869 (Fla. 2d DCA 1997). To be sure, appellant expressed satisfaction with his attorney’s advice and representation. Nevertheless, in circumstances where the defendant alleges that counsel never advised him of the availability of a legal defense that he…
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Scott v. State, 779 So. 2d 284 (Fla. 2d DCA 1998)…d counsel of specific individuals who would be able to corroborate this evidence; and that had he been apprised of the defense, he would have proceeded to jury trial. Counsel’s failing, he alleges, renders his pleas involuntary. See Whitty v. State, 687 So. 2d 869 (Fla. 2d DCA 1997); Wright v. State, 675 So. 2d 1009 (Fla. 2d DCA 1996). The trial court denied these claims on the basis of a plea form and an excerpt of the plea colloquy which noted Scott’s satisfaction with counsel. Arreola v. State, 620 So. 2…
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Benton v. State, 763 So. 2d 548 (Fla. 1st DCA 2000)…burglary had he not been so misinformed. This claim is facially sufficient and is not conclusively refuted by the record. See Elwell v. State, 693 So. 2d 1137 (Fla. 1st DCA 1997); Worden v. State, 688 So. 2d 958 (Fla. 4th DCA 1997); Whitty v. State, 687 So. 2d 869, 870 (Fla. 2d DCA 1997). Accordingly, the cause is reversed and remanded for evidentiary hearing. BARFIELD, C.J., MINER and PADOVANO, JJ., CONCUR.…
Authorities Cited
- Hoch v. State, 679 So. 2d 847 (Fla. 2d DCA 1996)
- Young v. State, 661 So. 2d 406 (Fla. 1st DCA 1995)
- Swain v. Bernie Howell, 661 So. 2d 406 (Fla. 1st DCA 1995)
- Wright v. State, 675 So. 2d 1009 (Fla. 2d DCA 1996)
- Kiser v. State, 678 So. 2d 859 (Fla. 1st DCA 1996)
- Cole Augustus Urquhart v. State, 676 So. 2d 64 (Fla. 1st DCA 1996)