ZACHARY RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richardson appeals the summary denial of his Rule 3.850 motion for post-conviction relief. The court reversed in part, holding that where a defendant sworn alleges counsel never advised him of a viable legal defense (voluntary intoxication), a plea agreement cannot conclusively refute that claim.
The trial court's summary denial must be reversed with respect to the intoxication defense claim. A plea agreement and colloquy cannot conclusively refute a sworn allegation that counsel never advised of a viable defense; the claim requires further proceedings.
[1] A trial court's summary denial of a motion for post-conviction relief must be reversed in part if the record attachments do not conclusively refute the sworn allegations…
[2] Voluntary intoxication can be a defense to specific intent crimes, such as burglary.
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“Burglary is a specific intent crime for which voluntary intoxication is a defense.”
Establishes that intoxication was a legally viable defense to the charge Richardson faced
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Join FLexlaw to unlock all legal intelligenceRichardson pled guilty to burglary of a structure after a plea colloquy where he stated he discussed the case with his attorney and was satisfied with…
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PER CURIAM.
Appellant Zachary Richardson appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The denial must be reversed in part because the record attachments provided by the trial court did not conclusively refute the sworn allegations of appellant’s motion.
Appellant pled guilty to one count of burglary of a structure. In a plea colloquy, appellant stated he had discussed every aspect of the case with his attorney, had been advised of possible defenses, was aware that by entering his plea he was foregoing any possible defenses, and was generally satisfied with his attorney’s services. His sworn motion for post-conviction relief alleges that he was under the influence of both alcohol and drugs at the time of the burglary for which he was convicted. Appellant further states under oath that he informed the public defender’s investigator of his intoxicated state at the time the crime was committed. Appellant then alleges that his appointed assistant public defender failed to inform him that the defense of intoxication was available to the 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 has only subsequently become aware of himself, “it would be illogical and unfair to foreclose analysis of that claim based upon what (defendant) asserts was an uninformed conclusion that counsel had been adequate in his criminal representation.” Scott v. State, 23 Fla. L. Weekly D2048,-So. 2d-, 1998 WL 552678 (Fla. 2d DCA Sept.2, 1998). See also Stanley v. State, 703 So. 2d 1156, 1157 (Fla. 2d DCA 1997); Young v. State, 661 So. 2d 406 (Fla. 1st DCA 1995); Brunson v. State, 605 So. 2d 1006 (Fla. 1st DCA 1992). Accordingly, the plea agreement and colloquy will not refute the claim where defendant avers under oath that he was never advised of a viable defense.
We REVERSE the order on appeal with regard to the intoxication defense and REMAND for further proceedings under the rule. We agree with the trial court, however, that defendant’s second claim alleging that the State failed to disclose certain evidence to him is wholly without merit, and the trial court’s ruling on that portion of the motion is AFFIRMED.
KAHN, BENTON and VAN NORTWICK, JJ., CONCUR.
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Brown v. State, 790 So. 2d 389 (Fla. 2000)…e Gustine [*392] definition of attempt had been the standard prior to Gentry. Arguably, Thomas can be reconciled with Gentry because the underlying offense in Thomas was burglary. Because burglary is a specific intent crime, see Richardson v. State, 723 So. 2d 910, 911 (Fla. 1st DCA 1999), then, under Gentry, attempted burglary would also be classified as a specific intent crime, and the Thomas court relied on the proper definition of attempt. However, in Rogers v. State, this Court again relied on the same…
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Odom v. State, 782 So. 2d 510 (Fla. 1st DCA 2001)…el was ineffective for failing to inform him of the voluntary intoxication defense and neglect [*511] ing to interview two witnesses who could have supported that defense. See Hester v. State, 732 So. 2d 331 (Fla. 1st DCA 1998); Richardson v. State, 723 So. 2d 910 (Fla. 1st DCA 1999). AFFIRMED in part, REVERSED in part, and REMANDED. BENTON and POLSTON, JJ., concur. PADOVANO, J., concurs with opinion.…
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Burkett v. State, 783 So. 2d 333 (Fla. 1st DCA 2001)…ecord conclusively refuting the claim that defense counsel was ineffective for failing to inform the appellant that voluntary intoxication was a defense to his robbery charges and the burglary charge in case number 98-1940G. See Richardson v. State, 723 So. 2d 910, 911 (Fla. 1st DCA 1999); Kiser v. State, 678 So. 2d 859, 860 (Fla. 1st DCA 1996). See also Thomas v. State, 734 So. 2d 1138 (Fla. 1st DCA 1999)(reversing for further proceedings on voluntary intoxication claim even though the appellant pled guilty…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thornton Brunson v. State, 605 So. 2d 1006 (Fla. 1st DCA 1992)
- Young v. State, 661 So. 2d 406 (Fla. 1st DCA 1995)
- Swain v. Bernie Howell, 661 So. 2d 406 (Fla. 1st DCA 1995)
- Otero v. State, 703 So. 2d 1156 (Fla. 3d DCA 1997)
- Whitty v. State, 687 So. 2d 869 (Fla. 2d DCA 1997)