Price v. State
| Decision Date | 20 February 1986 |
| Docket Number | No. BH-155,BH-155 |
| Parties | 11 Fla. L. Weekly 459, 11 Fla. L. Weekly 902 Johnny Bo PRICE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Johnny Bo Price, pro se.
Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant filed a motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure, alleging ineffective assistance of counsel. Specifically, appellant complained that his court-appointed attorney failed to conduct an adequate pretrial investigation of the defense of insanity by reason of intoxication based on appellant's contention that he had a history of alcoholism and was intoxicated at the time of the offenses. The trial court summarily denied the motion.
Appellant was charged with armed robbery and kidnapping. The record shows that he consumed approximately one-half quart of whiskey and smoked marijuana shortly before the offenses occurred and that alcohol consumption continued during the criminal episode. We note that this constitutes an even greater use of intoxicants than was present in Gardner v. State, 480 So.2d 91 (Fla.1985). In Gardner the Supreme Court held that a defendant charged with specific intent crimes is entitled to a jury instruction on voluntary intoxication Appellant has alleged that he informed his counsel about his long history of chronic alcoholism which resulted in his hospitalization and treatment for alcoholism and alcohol-induced schizophrenia. Nonetheless, the only defense which counsel chose to raise was mistaken identity, hardly a meaningful choice, given the testimony of the victim and a codefendant.
when there is evidence of the use of intoxicants and the defendant is intoxicated at the time of the offense.
We conclude that the motion is sufficient on its face to warrant an evidentiary hearing under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and we remand this case to the trial court pursuant to rule 3.850(f), Florida Rules of Criminal Procedure.
REVERSED and REMANDED.
ON MOTION FOR REHEARING
The State has filed a motion for rehearing or clarification raising two concerns.
First, the State complains that appellant did not file a sworn motion as required by Florida Rule of Criminal Procedure 3.850 and that the trial court's order denying the motion should be affirmed on this ground. We agree that the original motion was not sworn; we note, however, that appellant attempted to cure this defect on rehearing by incorporating into his motion a properly sworn affidavit supporting the...
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