WILLIAM HOWARD HESTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hester appealed the denial of his 3.850 postconviction relief motion, arguing his trial counsel was ineffective for failing to investigate and present a voluntary intoxication defense to kidnapping and armed robbery charges. The appellate court reversed on this claim, finding it facially sufficient and not clearly refuted by the record, requiring an evidentiary hearing on the issue.
The court held that Hester's ineffective assistance claim regarding failure to present a voluntary intoxication defense was facially sufficient and not clearly refuted by the record. It reversed the trial court's denial of this specific claim and remanded for an evidentiary hearing, though it affirmed the trial court's denial of other relief claims.
[1] A claim of ineffective assistance of counsel based on the failure to investigate and present a voluntary intoxication defense is facially sufficient when the defendant al…
[2] A defendant seeking postconviction relief is not required to present record evidence of intoxication at the time of the offense within the initial motion.
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 recognized defense to the specific intent crimes of kidnapping and armed robbery.”
Establishes that voluntary intoxication is legally viable as a defense to the crimes with which Hester was charged, supporting the facial sufficiency of his claim.
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Join FLexlaw to unlock all legal intelligenceHester was convicted by jury of kidnapping and two counts of armed robbery. In his postconviction motion, he alleged that immediately before the offen…
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WEBSTER, Judge.
Appellant seeks review of an order denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. In the trial court, appellant argued entitlement to relief on a number of grounds, including that his attorney had been ineffective for failing to investigate and present a voluntary intoxication defense.
The trial court denied relief on all grounds, either because the claims were legally insufficient, they were refuted by the record, or both.
We conclude that the claim that trial counsel had been ineffective because he failed to investigate and present a voluntary intoxication defense was facially sufficient and was not clearly refuted by the portions of the record attached to the trial court’s order.
Accordingly, we are constrained to reverse the portion of the trial court’s order that denied relief as to that claim, and to remand for further proceedings.
Appellant was convicted following a jury trial of kidnapping and two counts of armed robbery. In his motion, appellant alleged under oath that his trial attorney had been ineffective because he had failed to investigate and present a voluntary intoxication defense. According to appellant, for several hours immediately preceding the commission of the offenses he had smoked considerable crack cocaine and drunk a large volume of beer. He claimed that two identified witnesses had been available and would have supported his testimony. He further claimed that he had told all of this to his attorney, telling him also that, as a result, he “could not remember too well what happened.” Finally, appellant alleged that, had his attorney pursued a voluntary intoxication defense, the result would have been different.
The trial court concluded that this claim did not entitle appellant to relief because (1) appellant failed to point to any evidence that he was actually intoxicated at the time of the offense; (2) appellant failed to allege that the witnesses whom he claimed would have supported his defense were available to testify; (3) a voluntary intoxication defense would have been inconsistent with the misidentification defense presented by appellant’s attorney, suggesting a tactical decision by the attorney; and (4) the evidence was so overwhelming 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 DCA 1992).
We have also held that it is not necessary that a defendant point to record evidence of intoxication at the time of the offense. Bartley v. State, 689 So. 2d 372 (Fla. 1st DCA 1997).
While the decision to employ a misidentification defense rather than one of voluntary intoxication may have been a tactical one on the part of appellant’s attorney, such a determination normally cannot be made without an evidentiary hearing. E.g., Kiser v. State, 678 So. 2d 859 (Fla. 1st DCA 1996).
Our review of the record satisfies us that such is particularly true in this case, given the apparent weakness of a misidentification defense.
Finally, having carefully reviewed the record, we are unable to agree either that appellant did not sufficiently allege that the witnesses whom he claimed would have supported his defense were available to testify, or that the evidence was so overwhelming that such a defense would not have changed the outcome. While there was overwhelming evidence that appellant had committed the offenses, there was also record evidence which, in our opinion, would have supported a voluntary intoxication defense.
We reverse that portion of the trial court’s order which denied relief on appellant’s claim that trial counsel had been ineffective because he failed to investigate and present a voluntary intoxication defense, and remand as to that claim only for further proceedings consistent with this opinion. In all other respects, the trial court’s order is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
BARFIELD, C.J., and KAHN, J., concur.
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Donnie K. Sassnett v. State, 838 So. 2d 650 (Fla. 1st DCA 2003)…also alleged that he had given his attorney such information, but that counsel did not investigate an intoxication defense. These allegations are sufficient to warrant further inquiry regarding counsel’s strategy on such issue. See Hester v. State, 732 So. 2d 331 (Fla. 1st DCA 1998); Harley v. State, 753 So. 2d 693 (Fla. 4th DCA 2000); Griggs v. State, 744 So. 2d 1145 (Fla. 4th DCA 1999). Fourth, appellant claims ineffective assistance of counsel by not properly investigating and preparing the misidentifi-c…
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Odom v. State, 782 So. 2d 510 (Fla. 1st DCA 2001)…ecord conclusively refuting the claims that defense counsel 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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Bart A. Greenway v. State, 823 So. 2d 206 (Fla. 1st DCA 2002)…evidence to present in support of the claim of lawful resistance may well have been tactical, such a finding should normally be made only after an evidentiary hearing. See Jackson v. State, 789 So. 2d 1218, 1220 (Fla. 1st DCA 2001); Hester v. State, 732 So. 2d 331, 332 (Fla. 1st DCA 1998); Rosemond v. State, 634 So. 2d 259, 260 (Fla. 1st DCA 1994). We therefore reverse the order insofar as it denied the two specific claims discussed above and remand for the trial court either to attach portions of the record…
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
- Thornton Brunson v. State, 605 So. 2d 1006 (Fla. 1st DCA 1992)
- 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)
- Hylleberg v. State, 700 So. 2d 807 (Fla. 5th DCA 1997)
- Newell v. Kirkland, 700 So. 2d 807 (Fla. 5th DCA 1997)