Payton v. State

719 So. 2d 353, 1998 Fla. App. LEXIS 12786, 1998 WL 702324

Opinion

PER CURIAM.

Appellant alleges in a motion filed under Florida Rule of Criminal Procedure 3.850 that his trial counsel affirmatively misinformed him as to the availability of a voluntary intoxication defense. The trial court summarily denied the motion. Morris v. State, 670 So.2d 1151 (Fla. 1st DCA 1996), however, mandates reversal as the record materials attached to the trial court’s order do not conclusively demonstrate that the appellant is not entitled to relief. Therefore, we remand so that the trial court can conduct an evidentiary hearing as to the claim of ineffective assistance of counsel for failing to pursue a defense of voluntary intoxication. Alternatively, if there be such, the trial court may attach other portions of the already existing trial court record which conclusively refute appellant’s claim, to a new order of summary denial. See Fla. R.Crim. P. 3.850(a); Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).

MINER, ALLEN and KAHN, JJ., concur.