DANIELS v. STATE (2001)

Appellant Willie Daniels appeals the trial court's order summarily denying all six grounds of his motion for post-conviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We agree with the summary denial of grounds 1, 3, 4, 5 and 6, but reverse and remand as to ground 2.

In ground 2, appellant alleged ineffective assistance of his trial counsel for failure to explain to him the availability of a defense to the charges of burglary and grand theft on the grounds of voluntary intoxication. This ground is legally sufficient. See Smith v. State, 719 So.2d 1017 (Fla. 4th DCA 1998). See also Seraphin v. State, 706 So.2d 913 (Fla. 4th DCA 1998) (reversing in part summary denial of motion for post-conviction relief, alleging trial counsel was ineffective for insisting appellant plead to charge of robbery with deadly weapon, a specific intent crime, without informing him that voluntary intoxication could be used as defense, where plea colloquy attached to order of denial did not refute claim).

The other issues raised are without merit and as to those we affirm the summary denial. As for the ineffective assistance ground discussed above, we reverse and remand for an evidentiary hearing or the attachment of portions of the record conclusively showing appellant is not entitled to relief, either on the merits or because the motion is successive.

Affirmed in part, reversed in part, and remanded for further proceedings.

PER CURIAM.

POLEN, KLEIN and STEVENSON, JJ., concur.