NATHAN MIKE BACON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court's summary denial of post-conviction relief motion was reversed because counsel's failure to pursue a voluntary intoxication defense constituted a colorable ineffective assistance claim that could not be dismissed based solely on the presentation of an inconsistent mistaken identity defense.
Presentation of an arguably inconsistent defense does not conclusively demonstrate that failure to present a voluntary intoxication defense was a tactical decision, and such a colorable ineffective assistance claim cannot be summarily denied.
[1] Presentation of an arguably inconsistent defense strategy does not conclusively establish that counsel's failure to present an alternative defense was a deliberate tactic…
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Join FLexlaw to unlock all legal intelligence“presentation of an arguably inconsistent defense, standing alone, does not conclusively show that failure to present a voluntary intoxication defense was a tactical decision”
Court explaining why trial court erred in summarily denying the ineffective assistance claim based on defense strategy inconsistency
Appellant Bacon was convicted at trial where his defense was mistaken identity. He later filed a Rule 3.850 motion for post-conviction relief claiming…
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PER CURIAM.
The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. The summary denial of the appellant’s colorable claim that his trial counsel was ineffective for failing to pursue a voluntary intoxication defense is reversed. See, e.g., Hester v. State, 23 Fla.
L. Weekly D1567, - So. 2d -, 1998 WL 323517 (Fla. 1st DCA June 22, 1998),; Bartley v. State, 689 So. 2d 372 (Fla. 1st DCA 1997); Spivey v. State, 680 So. 2d 565 (Fla. 1st DCA 1996); Morris v. State, 670 So. 2d 1151 (Fla. 1st DCA 1996).
In denying the appellant’s claim, the trial court observed that the defense presented at trial, mistaken identity, suggested a tactical decision by trial counsel not to present the voluntary intoxication de fense. But presentation of an arguably inconsistent defense, standing alone, does not conclusively show that failure to present a voluntary intoxication defense was a tactical decision. Hester. See also Kiser v. State, 678 So. 2d 859 (Fla. 1st DCA 1996); Williams v. State, 647 So. 2d 996 (Fla. 1st DCA 1994); Thomas v. State, 634 So. 2d 1157 (Fla. 1st DCA 1994).
The order under review is otherwise affirmed, and this case is remanded for further proceedings under rule 3.850.
ALLEN and WEBSTER, JJ., CONCUR. JOANOS, J., CONCURS IN RESULT.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Meehan v. State, 793 So. 2d 1169 (Fla. 1st DCA 2001)…lly cannot be made without an evi-dentiary hearing.”). “[P]resentation of an arguably inconsistent defense, standing alone, does not conclusively show that failure to present a voluntary intoxication defense was a tactical decision.” Bacon v. State, 729 So. 2d 964, 965 (Fla. 1st DCA 1999). We therefore reverse on this point and remand for an evidentiary hearing. We otherwise affirm. REVERSED IN PART; AFFIRMED IN PART; and REMANDED. BOOTH, BENTON, and BROWNING, JJ., CONCUR.…
Authorities Cited
- Ervin Alphonso Bartley v. State, 689 So. 2d 372 (Fla. 1st DCA 1997)
- Kiser v. State, 678 So. 2d 859 (Fla. 1st DCA 1996)
- Paleno Estrada v. State, 689 So. 2d 372 (Fla. 2d DCA 1997)
- Spivey v. State, 680 So. 2d 565 (Fla. 1st DCA 1996)
- Henderson v. State, 634 So. 2d 1157 (Fla. 1st DCA 1994)
- Thomas v. State, 634 So. 2d 1157 (Fla. 1st DCA 1994)
- Williams v. State, 647 So. 2d 996 (Fla. 1st DCA 1994)
- Goodson v. State, 670 So. 2d 1151 (Fla. 1st DCA 1996)