TOBEY v. STATE (1999)

Keith Tobey appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.  Tobey's initial motion was denied by the trial court because it did not meet the informational requirements of rule 3.850.  Tobey filed another motion which contained the same claims as the first but also included a statement that no other motions had been filed.   The trial court again denied the motion for failure to meet the informational requirements of rule 3.850, stating that it was identical to the previously denied motion.   We disagree.

Tobey's second motion was not identical to the first.   After reviewing it, we find that it meets the informational requirements of rule 3.850.  We, therefore, reverse and remand in order for the trial court to consider Tobey's motion on the merits.   In order to provide some guidance on remand, we point out that Tobey's claim that counsel was ineffective for failing to advise him of the defense of voluntary intoxication is facially sufficient based on the allegations contained in the motion.   See, e.g., Young v. State, 661 So.2d 406 (Fla. 1st DCA 1995). It accordingly may only be summarily denied if it is conclusively refuted by record attachments.

Reversed and remanded.

PER CURIAM.

CAMPBELL, A.C.J., and ALTENBERND and WHATLEY, JJ., Concur.