EDWARD F. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1998-11-04
No. 98-2268
SHAHOOD and TAYLOR, JJ., and OWEN, WILLIAM C, Jr.: Senior Judge, concur.
719 So. 2d 1017 Florida District Court of Appeal, Fourth District (1998) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Edward F. Smith appeals the summary denial of his rule 3.850 motion for postconviction relief based on ineffective assistance of counsel. The Fourth District Court of Appeal reversed in part, finding that Smith's claim that counsel failed to investigate voluntary intoxication as a defense to specific intent crimes was legally sufficient and required an evidentiary hearing, while affirming the summary denial of his other grounds.


Holding

The voluntary intoxication ineffective assistance ground is legally sufficient and requires an evidentiary hearing or attachment of additional record portions conclusively demonstrating Smith is not entitled to relief. The trial court erred by not attaching prior motions and pertinent records to the order of denial when addressing the successiveness issue. The other grounds for postconviction relief were properly denied.


Headnotes

[1] A claim of ineffective assistance of counsel based on counsel's failure to investigate and present a voluntary intoxication defense to specific intent crimes is legally s…

[2] A defendant's plea is involuntary if it is based on counsel's misadvice regarding the availability of a viable defense.

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Key Quotes

“This ground is legally sufficient. See Seraphin v. State, 706 So.2d 913 (Fla. 4th DCA 1998) (reversing in part summary denial of motion for posteonviction relief, alleging trial counsel was ineffective for insisting appellant plead to charge of robbery with deadly weapon, a specific intent crime, without informing him that voluntary intoxication could be used as defense, where plea colloquy attached to order of denial did not refute claim).”

Establishes that Smith's claim alleging counsel's failure to inform him of voluntary intoxication as a defense to specific intent crimes is legally sufficient to require a hearing.

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Facts & Procedural History

Smith is serving three consecutive life sentences for first degree murder, kidnapping, and burglary of a conveyance with an assault or battery—all spe…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Edward F. Smith appeals the summary denial of his motion for postconvietion relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, in which he raised three grounds of ineffective assistance of counsel and also asserted the lack of a factual basis for a portion of his plea. We reverse and remand for an evidentiary hearing or for the attachment of additional portions of the record which conclusively show, as the plea colloquy attached to the order did not, that appellant is not entitled to relief on the ground that counsel was ineffective in failing to investigate and develop a defense of voluntary intoxication.

In connection with that ground, appellant claimed he would not have entered the plea had he known the defense was avail able; that he now knew it was a defense to each of the charges, all of which are specific intent crimes1; that evidence was available to support the defense; that the record would show,- and Appellant had informed counsel of the fact that, he had consumed and ingested large quantities of alcohol and marijuana just before the commission of the offenses; that he informed counsel of his severely diminished capacity, which was: supported by police reports and appellant’s post-arrest statements; that instead, counsel continually told appellant he had no defense to the charges and had better enter a plea or he would receive the death penalty; that appellant relied on counsel’s misadvice as to the availability of a viable defense, rendering his plea involuntary, as he would not have entered the plea but for counsel’s misadvice.

This ground is legally sufficient. See Seraphin v. State, 706 So. 2d 913 (Fla. 4th DCA 1998) (reversing in part summary denial of motion for posteonviction relief, alleging trial counsel was ineffective for insisting appellant plead to charge of robbery with deadly weapon, a specific intent crime, without informing him that voluntary intoxication could be used as defense, where plea colloquy attached to order of denial did not refute claim).

In its response to this court’s order to show cause, the state argued that the denial of the instant motion could be affirmed because the motion was successive to a prior motion to withdraw plea in which Appellant had asserted ineffective assistance of counsel, and which the trial court had addressed on the merits. The state included in its appendix copies of the motion and the order.

However, in order to uphold a denial on the basis of rule 3.850(f) (successive motions), excerpts from the record demonstrating the successiveness of the motion must be attached to the order of denial. See Bell v. State, 585 So. 2d 496 (Fla. 2d DCA 1991) (reversing order denying postconviction motion as successive and abuse of procedure for failure to attach prior motions and pertinent records to permit the appellate court to review the dismissal).

The state’s supplying them in an appendix to its response to this court cannot cure the deficiency. See Wheeler v. State, 634 So. 2d 213 (Fla. 4th DCA 1994) (reversing order denying motion for postconviction relief, holding state’s attempt to cure record deficiency by supplying appendix to district court could not cure lack of support for circuit court’s order).

The other issues raised are without merit and as to those we affirm the summary denial. As for the ineffective assistance ground discussed above, we reverse and remand for an evidentiary hearing or the attachment of portions of the record conclusively showing Appellant is not entitled to relief, either on the merits or because the motion is successive.

Affirmed in part, reversed in part, and remanded for further proceedings.

SHAHOOD and TAYLOR, JJ., and OWEN, WILLIAM C, Jr.: Senior Judge, concur. . Appellant is presently serving three consecutive life sentences for first degree murder, kidnapping, and burglary of a conveyance with an assault or battery. Each of these offenses is a specific intent crime. See Hylleberg v. State, 700 So. 2d 807 (Fla. 5th DCA 1997)• (first degree murder; kidnapping); Wright v. State, 675 So. 2d 1009 (Fla. 2d DCA 1996) (kidnapping); Urquhart v. State, SI6 So. 2d 64 (Fla. 1st DCA 1996) (burglary).


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Citator

Cited By

  • Geeta Panchu v. State, 1 So. 3d 1243 (Fla. 4th DCA 2009)
    …f “independent act” and “mere presence.” But because the defendant did not show circumstances demonstrating that these defenses were available, we upheld the trial court’s denial of his motion to withdraw the plea on that ground. In Smith v. State, 719 So. 2d 1017, 1017-18 (Fla. 4th DCA 1998), the defendant alleged in his post-conviction motion that his counsel misadvised him as to the availability of the defense of voluntary intoxication and that he would not have entered a plea but for counsel’s misadvice.…
  • Szymanowski v. State, 771 So. 2d 10 (Fla. 4th DCA 2000)
    …for the intoxication defense. The trial court also found no merit to this claim because appellant chose to accept a plea and waived his [*12] right to raise affirmative defenses. We disagree and reverse and remand on this issue. See Smith v. State, 719 So. 2d 1017 (Fla. 4th DCA 1998); Bartley v. State, 689 So. 2d 372 (Fla. 1st DCA 1997); Jenkins v. State, 625 So. 2d 883 (Fla. 1st DCA 1993); and Paulk v. State, 723 So. 2d 909 (Fla. 1st DCA 1999). The other issues raised on appeal are without merit and we affi…
  • Wilson v. State, 901 So. 2d 885 (Fla. 4th DCA 2005)
    …nts state legally sufficient claims where they allege that they entered a plea because counsel failed to inform them of a viable defense available if they proceeded to trial. See Seraphin v. State, 706 So. 2d 913 (Fla. 4th DCA 1998); Smith v. State, 719 So. 2d 1017 (Fla. 4th DCA 1998); Szymanowski v. State, 771 So. 2d 10 (Fla. 4th DCA 2000). The record reflects that defendant was charged in case number 99-1797 with armed burglary, two counts of robbery with a firearm, and another count of burglary; he was cha…

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