DANIEL SOLOMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daniel Soloman appeals the denial of his Rule 3.850 post-conviction motion, claiming ineffective assistance of counsel for failing to present evidence of his intoxication and request a corresponding jury instruction. The court agrees that an evidentiary hearing is necessary to determine whether counsel's decision not to present intoxication evidence was strategic or constituted ineffective assistance.
The court reverses the denial of post-conviction relief and remands for an evidentiary hearing. A hearing is necessary to determine whether evidence of intoxication existed, whether Soloman informed counsel of his intoxication, and whether counsel made a strategic decision not to present such evidence.
[1] A defendant is entitled to an evidentiary hearing on a post-conviction relief motion alleging ineffective assistance of counsel for failing to present evidence of intoxic…
[2] Voluntary intoxication can be a defense to the specific intent crime of aggravated battery.
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“evidence of Defendant's intoxication would have supported a voluntary intoxication instruction limited to the aggravated battery instruction”
Establishes that even though intoxication is not a defense to the original charge, it could be relevant to the lesser included offense for which defendant was convicted
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSoloman was charged with attempted second-degree murder. He claims he told his attorney before trial that he had been drinking, smoking marijuana, and…
The full statement of facts, procedural history, and disposition for this case are member content.
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GOSHORN, J.
Daniel Soloman appeals the order denying his rule 3,850 motion for post-conviction relief without a hearing. He contends a hearing is necessary on his claim that his attorney was ineffective for failing to put on evidence of his intoxication and request an instruction thereon. We agree and reverse for an evidentiary hearing.
Defendant asserts that he told his attorney before trial that he had been drinking and smoking marijuana the day of the crime and had used crack cocaine fifteen minutes before committing the crime. His attorney assertedly did not investigate his claim, but instead argued self defense as a defense against the charge of attempted second-degree murder.1 The jury found Defendant guilty of aggravated battery, a lesser included offense of attempted second-degree murder. While a voluntary intoxication defense would have been unavailing against the general intent crime charged,2 evidence of Defendant’s intoxication would have supported a voluntary intoxication instruction limited to the aggravated battery instruction. Berry v. State, 586 So. 2d 1229 (Fla. 4th DCA 1991) (voluntary intoxication is a defense to the specific intent crime of aggravated battery). A hearing is necessary to determine whether there was evidence of Defendant’s intoxication at the time he committed the crime, whether he informed his trial counsel of his intoxication, and whether the counsel made a strategic decision not to present such evidence, assuming the existence thereof.
We note that evidence of a defendant’s use of drugs before committing a crime does not require a jury instruction on voluntary intoxication; evidence of the use of intoxicants is not the equivalent of evidence of intoxication. Linehan v. State, 476 So. 2d 1262, 1264 (Fla.1985); McInnis v. State, 642 So. 2d 831 (Fla. 2d DCA 1994). Assuming there was relevant evidence of Defendant’s intoxication, trial counsel may well have made a reasonable strategic decision not to put this evidence before the jury, preferring instead to focus the jury on the self defense argument to negate the more serious crime. Without a hearing, the effectiveness of trial counsel’s representation cannot be judged.
REVERSED' and REMANDED for further proceedings.
DAUKSCH and GRIFFIN, JJ., concur. . This court has recently certified the question whether the crime of attempted second degree murder even exists in Florida. Brown v. State, 733 So. 2d 598 (Fla. 5th DCA 1999).
. Involuntary intoxication does not provide a defense to a general intent offense. Linehan v. State, 476 So. 2d 1262, 1264 (Fla.1985).
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Citator
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King v. State, 766 So. 2d 329 (Fla. 3d DCA 2000)…g appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively show that defendant is not entitled to relief on the voluntary intoxication ground, see Soloman v. State, 741 So. 2d 1211 (Fla. 5th DCA 1999); Joyner v. State, 728 So. 2d 329 (Fla. 3d DCA 1999), we reverse the order and remand the cause for an eviden-tiary hearing on that ground. We affirm the order as to the remaining grounds. Contrary to the dissent’s position, the…
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Lopez v. State, 773 So. 2d 1267 (Fla. 5th DCA 2000)…failing to present evidence to impeach the questionable identification cannot be justified as a strategic decision without an evidentiary hearing on Lopez’s 3.850 motion. See, e.g., Hall v. State, 754 So. 2d 70 (Fla. 4th DCA 2000); Soloman v. State, 741 So. 2d 1211 (Fla. 5th DCA 1999). The summary denial of the 3.850 motion is vacated as to this issue only and we remand for an evidentiary hearing. We reject all of the other issues raised by Lopez and affirm the trial court’s summary denial of those. AFFIRMED…
Authorities Cited
- Linehan v. State, 476 So. 2d 1262 (Fla. 1985)
- Wahill Saleh Hack v. State, 733 So. 2d 598 (Fla. 5th DCA 1999)
- Dilbert v. State, 642 So. 2d 831 (Fla. 2d DCA 1994)
- Hank H. Berry v. State, 586 So. 2d 1229 (Fla. 4th DCA 1991)