Kitchen v. State, 4D00-1123.

• Decision Date: 09 August 2000
• Docket Number: No. 4D00-1123.,4D00-1123.
• Citation: 764 So.2d 868
• Parties: John F. KITCHEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

764 So.2d 868

John F. KITCHEN, Appellant, v. STATE of Florida, Appellee.

No. 4D00-1123.

District Court of Appeal of Florida, Fourth District.

August 9, 2000.

John F. Kitchen, Indiantown, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

John F. Kitchen appeals the summary denial of his motion for postconviction relief under rule 3.850, Florida Rules of Criminal Procedure, without record attachments. We affirm as to appellant's first and fourth grounds for relief, which raised claims of trial court error cognizable on direct appeal. We reverse and remand as to appellant's second, third, and fifth grounds for relief.

Appellant's second ground was that his sentence as a violent career criminal was unconstitutional under State v. Thompson, 750 So.2d 643 (Fla.1999). Thompson held that chapter 95-182, Laws of Florida, which created the violent career criminal sentencing category of habitual felony offender sentencing, violated the single subject requirement of the Florida Constitution. Appellant's offense occurred on July 3, 1996, which is within the window period for challenging his sentence. See Salters v. State, 758 So.2d 667 (Fla. 2000)(the window period for raising a single subject challenge to chapter 95-182 opened on October 1, 1995 and closed on May 24, 1997). Further, appellant may raise this challenge in a postconviction motion. See Hanford v. State, 756 So.2d 191 (Fla. 4th DCA 2000); Gonzalez v. State, 753 So.2d 644 (Fla. 4th DCA 2000).

Appellant's third and fifth grounds were claims of ineffective assistance of counsel. In his third ground, appellant claimed that his trial counsel was ineffective in failing to investigate and present a defense of voluntary intoxication. He stated that prior to trial, he informed trial counsel that he was intoxicated by crack cocaine and alcohol before entering the store (where he snatched the victim's purse and keys) and that he did not realize he had committed the offense of robbery. Further, he advised counsel of his history of substance abuse and dependency. Instead of investigating a voluntary intoxication defense, however, counsel allegedly advised appellant that it was not a defense to the charge of robbery. On the contrary, robbery is a specific intent crime for which voluntary intoxication is a defense. See Gardner v. State, 480 So.2d 91 (Fla. 1985).

Generally, a postconviction claim that counsel was ineffective in failing to investigate and present a defense of voluntary intoxication to a specific intent crime is a facially sufficient claim. See Wilson v. State, 696 So.2d 957 (Fla. 1st DCA 1997). Counsel may make a tactical decision not to pursue a voluntary intoxication defense, but a trial court's finding that such a decision was tactical usually is inappropriate without an evidentiary hearing. See Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995). This ground, as alleged by appellant, appears to be legally sufficient and should not have been summarily denied without the attachment of portions of the record demonstrating conclusively that the movant is not entitled to relief. See, e.g., Bartley v. State, 689 So.2d 372 (Fla. 1st DCA 1997).

Appellant's fifth ground was that trial counsel was ineffective in allowing two admittedly biased jurors to serve on his jury. In this connection, appellant quoted from the transcript of the prosecutor's voir dire of juror Ms. Blackson, whose daughter was involved in an armed robbery (although she stated that she did not think that would affect her); and defense counsel's voir dire of juror Ms. Crosby, who admitted she would be disappointed if she could not hear what appellant had to say. He contended that defense counsel was ineffective in failing to move to strike these jurors for cause or through a peremptory challenge. The...