voluntary intoxication defense in Florida

2003In order to successfully assert the voluntary intoxication defense, "the defendant must come forward with evidence of intoxication at the time of the offense sufficient to establish that he was unable to form the intent necessary to commit the crime charged." Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985).

1999A voluntary intoxication instruction is only required where the defendant produces “evidence of his intoxication sufficient to establish that he was incapable of forming the intent necessary to commit the crime.” Id. at 145 (citing Linehan v. State, 476 So.2d 1262 (Fla.1985)).

2008See Rivera v. State, 717 So.2d 477, 485 (Fla.1998) (holding that trial counsel made a reasonable tactical decision to forego a voluntary intoxication defense because "there was no evidence that Rivera was intoxicated at the time of the murder ").

2006This Court concluded that "counsel cannot be deemed ineffective for failing to pursue the voluntary intoxication defense as such a defense would have been inconsistent with Williams' theory of the case [that he did not commit the murder]." Id.; see also Brown v. State, 894 So.2d 137, 146 (Fla.2004) ("Failure to present an intoxication defense cannot constitute ineffective assistance of counsel when the defendant asserts his innocence."); Rivera v. State, 717 So.2d 477, 485 (Fla.1998) (concluding that guilt phase counsel was not ineffective in foregoing a voluntary intoxication defense strategy

2005See Stewart v. State, 801 So.2d 59, 65-66 (Fla.2001) (rejecting a claim that trial counsel was ineffective for not pursuing a voluntary intoxication defense where trial counsel testified the defendant had provided a detailed account of the crime and the State's potential experts would reveal the defendant's competency to stand trial).

2004With respect to Stewart's claim that trial counsel was ineffective in failing to employ a voluntary intoxication defense, this Court concluded that "counsel made an informed and reasoned decision not to pursue a voluntary intoxication defense." Id. at 65 .

2006Generally, under the law applicable to these murders, when trial counsel makes a tactical decision not to pursue a voluntary intoxication defense, "a trial court's finding that such a decision was tactical usually is inappropriate without an evidentiary hearing." Williams, 797 So.2d at 1239 (quoting Kitchen v. State, 764 So.2d 868, 869 (Fla. 4th DCA 2000)).

2002Compare Kitchen v. State, 764 So.2d 868, 869 (Fla. 4th DCA 2000) ("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."), with Stewart v. State, 801 So.2d 59, 65 (Fla. 2001) (holding that counsel was not ineffective for failing to employ a voluntary intoxication defense where, at an evidentiary hearing, defense counsel testified that he considered an intoxication defense but determined that it was not a viable defense based on the facts of the

2009(See Remeta v. Dugger, 622 So.2d 452, 455 (Fla.1993) (trial counsel not ineffective for making a tactical decision not to present a voluntary intoxication defense where the theory of the defense was that an accomplice was “the primary perpetrator and trigger man in the killing [and a]n intoxication defense would be inconsistent with Remeta’s contention that he did not commit the crime”)(quoting trial court’s order)).

2009Cf. id. at 455 (“The decision not to present a voluntary intoxication defense was a tactical one based on what Remeta’s counsel felt the facts of the case supported.”).

2019See Reynolds v. State , 227 So.3d 220 , 221 (Fla. 5th DCA 2017) ("Generally, a trial court may not summarily deny a rule 3.850 motion on the ground that trial counsel made a reasonable tactical decision, unless 'it is so obvious from the face of the record that trial counsel's strategy not to present a voluntary intoxication defense is very clearly a tactical decision well within the discretion of counsel.' " (quoting Hannon v. State , 941 So.2d 1109 , 1138 (Fla. 2006) ) ).

2019See Reynolds v. State , 227 So.3d 220 , 221 (Fla. 5th DCA 2017) ("Generally, a trial court may not summarily deny a rule 3.850 motion on the ground that trial counsel made a reasonable tactical decision, unless 'it is so obvious from the face of the record that trial counsel's strategy not to present a voluntary intoxication defense is very clearly a tactical decision well within the discretion of counsel.' " (quoting Hannon v. State , 941 So.2d 1109 , 1138 (Fla. 2006) ) ).

2012It is well-established that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000).

2006See Jones v. State, 855 So.2d 611, 616-617 (Fla.2003); Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). [3] *879 Furthermore, we have said that counsel's decision not to pursue a voluntary intoxication defense was not ineffective assistance where no evidence was presented that defendant was intoxicated at the time of the crime although there has been a history of drug abuse.

2002See Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995).

2000See Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995).

2002See McKinney v. State, 722 So.2d 933 (Fla. 1st DCA 1998).

2002See McKinney v. State, 722 So.2d 933, 934-35 (Fla. 1st DCA 1998).

2006See, e.g., State v. Williams, 797 So.2d 1235, 1239 (Fla.2001) ("[C]ounsel cannot be deemed ineffective for failing to pursue the voluntary intoxication defense as such a defense would have been inconsistent with [defendant's] theory of the case.").

2006Generally, under the law applicable to these murders, when trial counsel makes a tactical decision not to pursue a voluntary intoxication defense, "a trial court's finding that such a decision was tactical usually is inappropriate without an evidentiary hearing." Williams, 797 So.2d at 1239 (quoting Kitchen v. State, 764 So.2d 868, 869 (Fla. 4th DCA 2000)).

1995See McCoy v. State, 598 So.2d 169 (Fla. 1st DCA 1992); Brunson v. State, 605 So.2d 1006 (Fla. 1st DCA 1992).

1995Jenkins v. State, 625 So.2d 883 (Fla. 1st DCA 1993); Reed v. State, 611 So.2d 48 (Fla. 1st DCA 1992); McCoy v. State, 598 So.2d 169 (Fla. 1st DCA 1992).

2019See Reynolds v. State , 227 So.3d 220 , 221 (Fla. 5th DCA 2017) ("Generally, a trial court may not summarily deny a rule 3.850 motion on the ground that trial counsel made a reasonable tactical decision, unless 'it is so obvious from the face of the record that trial counsel's strategy not to present a voluntary intoxication defense is very clearly a tactical decision well within the discretion of counsel.' " (quoting Hannon v. State , 941 So.2d 1109 , 1138 (Fla. 2006) ) ).

2019See Reynolds v. State , 227 So.3d 220 , 221 (Fla. 5th DCA 2017) ("Generally, a trial court may not summarily deny a rule 3.850 motion on the ground that trial counsel made a reasonable tactical decision, unless 'it is so obvious from the face of the record that trial counsel's strategy not to present a voluntary intoxication defense is very clearly a tactical decision well within the discretion of counsel.' " (quoting Hannon v. State , 941 So.2d 1109 , 1138 (Fla. 2006) ) ).

2016In Brown v. State, 614 So. 2d 12, 12 (Fla. 1st DCA 1993), this Court held that the trial court improperly restricted the defense’s questioning of prospective jurors about the appellant’s anticipated voluntary intoxication defense to the charges of battery on a law enforcement officer and resisting arrest with violence and, therefore, reversed those convictions and remanded for a new trial on those charges.

2016In Brown v. State, 614 So.2d 12, 12 (Fla. 1st DCA 1993), this Court held that the trial court improperly restricted the defense’s questioning of prospective jurors about the appellant’s anticipated voluntary intoxication defense to the charges of battery on a law enforcement officer and resisting arrest with violence and, therefore, reversed those convictions and remanded for a new trial on those charges.

2013See Brown v. State, 894 So.2d 137, 146 (Fla.2004) (“Failure to present an intoxication defense cannot constitute ineffective assistance of counsel when the defendant asserts his innocence.”).

2006This Court concluded that "counsel cannot be deemed ineffective for failing to pursue the voluntary intoxication defense as such a defense would have been inconsistent with Williams' theory of the case [that he did not commit the murder]." Id.; see also Brown v. State, 894 So.2d 137, 146 (Fla.2004) ("Failure to present an intoxication defense cannot constitute ineffective assistance of counsel when the defendant asserts his innocence."); Rivera v. State, 717 So.2d 477, 485 (Fla.1998) (concluding that guilt phase counsel was not ineffective in foregoing a voluntary intoxication defense strategy

2012See Johnson v. State, 593 So.2d 206, 209 (Fla.1992).

2001See Occhicone, 768 So.2d at 1048 (affirming denial of petitioner's ineffectiveness claim for counsel's failure to present additional evidence in support of voluntary intoxication defense where defense counsel testified that they chose against presenting the additional evidence because of taped statements made by the petitioner to a psychologist which demonstrated that the defendant "had a good recall of what transpired the night of *66 the murders and therefore was not intoxicated to the level of not being able to premeditate the murders"); Johnson v. State, 593 So.2d 206, 209 (Fla.1992) (hold

2008See Rivera, 717 So.2d at 485 (holding that counsel's performance was not deficient because "Rivera's unwavering professions of innocence short-circuited any credible voluntary intoxication defense during the guilt phase"); Rose v. State, 617 So.2d 291, 294 (Fla.1993) ("When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.") (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir. 1985)).

1998Beyond the fact that this was probably a sound tactical decision since there was no evidence Rivera was intoxicated at the time of the murder, we have determined that "[w]hen a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made." Rose v. State, 617 So.2d 291, 294 (Fla.1993) (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).

2008See Rivera, 717 So.2d at 485 (holding that counsel's performance was not deficient because "Rivera's unwavering professions of innocence short-circuited any credible voluntary intoxication defense during the guilt phase"); Rose v. State, 617 So.2d 291, 294 (Fla.1993) ("When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.") (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir. 1985)).

1998Beyond the fact that this was probably a sound tactical decision since there was no evidence Rivera was intoxicated at the time of the murder, we have determined that "[w]hen a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made." Rose v. State, 617 So.2d 291, 294 (Fla.1993) (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).

2007See § 921.141(1), Fla. Stat. (1991) ("Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. . . ."); Buford v. State, 492 So.2d 355, 358 (Fla.1986) ("[U]nder Florida's bifurcated capital sentencing scheme, the sentencing judge and the reviewing court determine whether the defendant was convicted under circumstances which would prohibit imposition of the death sentence.") (citing Brown v. State, 473 So.2d 1260, 1265 (Fla. 1985)).

1991Henderson v. State, supra. As to the issue that trial counsel was ineffective for failing to request an instruction on voluntary intoxication, the Supreme Court of Florida held in Buford v. State, 492 So.2d 355, 359 (Fla. 1986), that the decision to include a voluntary intoxication instruction is tactical and, therefore, not subject to collateral attack.

2006In Pietri v. State, 885 So.2d 245, 252-53 (Fla.2004), we rejected a similar claim that defense counsel was ineffective for failing to present a voluntary intoxication defense based on the defendant's persistent use of cocaine on the days prior to the murder. [11] Although Pietri presented several expert witnesses to support his claim, including Dr. Lipman, the same witness who testified in this case, the Court concluded that Pietri failed to present any evidence "to demonstrate that he was in fact intoxicated at the time of the offense" or "any competent evidence proving his inability to form

2006In Pietri v. State, 885 So.2d 245, 252-53 (Fla.2004), we rejected a similar claim that defense counsel was ineffective for failing to present a voluntary intoxication defense based on the defendant's persistent use of cocaine on the days prior to the murder. [11] Although Pietri presented several expert witnesses to support his claim, including Dr. Lipman, the same witness who testified in this case, the Court concluded that Pietri failed to present any evidence "to demonstrate that he was in fact intoxicated at the time of the offense" or "any competent evidence proving his inability to form

2005See Locklear v. State, 847 So.2d 543, 544 (Fla. 2d DCA 2003).

2003See Locklear, 847 So.2d 543 .

2012Third Ineffective Assistance of Counsel Claim Farr claims that Slaughter was ineffective in failing to present a voluntary intoxication defense, 9 which led to Farr’s decision to plead guilty. 10 To prevail on this claim, Farr must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101 , 76 S.Ct. 158 , 100 L.Ed. 88 (1955)).

2012Third Ineffective Assistance of Counsel Claim Farr claims that Slaughter was ineffective in failing to present a voluntary intoxication defense, 9 which led to Farr’s decision to plead guilty. 10 To prevail on this claim, Farr must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101 , 76 S.Ct. 158 , 100 L.Ed. 88 (1955)).

2014Henry v. State, 862 So.2d 679 (Fla.2003).

2006See Dufour v. State, 905 So.2d 42, 53 (Fla.2005); Pietri v. State, 885 So.2d 245, 253 (Fla.2004); Henry v. State, 862 So.2d 679, 683 (Fla.2003). [4] Reaves has failed to show how counsel's performance at retrial was deficient, i.e., that he did not function as `counsel' guaranteed by the Sixth Amendment.

2012Gardner’s accomplice testified as to Gardner’s consumption of alcohol and marijuana on the day he committed the crimes, and a separate witness testified that shortly after the crimes were committed, Gardner’s “eyes looked high.” Gardner, 480 So.2d at 93 .

1998The Supreme Court observed in Gardner v. State, that it is not error to refuse the voluntary intoxication instruction where there is no evidence that the defendant was intoxicated; however, when the evidence is sufficient to create a question of fact for the jury, it is up to the jury to weigh the evidence and the defendant is entitled to the instruction. 480 So.2d 91, 93 (Fla.1985).

2007The circuit court limited the evidentiary hearing to Jones's "claims of ineffective assistance of counsel related to a voluntary intoxication defense, mitigation, and appellant's pretrial competency." Id. at 615 .

2006See Jones v. State, 855 So.2d 611, 616-617 (Fla.2003); Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). [3] *879 Furthermore, we have said that counsel's decision not to pursue a voluntary intoxication defense was not ineffective assistance where no evidence was presented that defendant was intoxicated at the time of the crime although there has been a history of drug abuse.

2006NOTES [1] Huff v. State, 622 So.2d 982 (Fla.1993). [2] Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002). [3] In these cases this Court held that strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct. [4] In Dufour this Court found no ineffectiveness where trial counsel made an informed and reasoned decision not to pursue a voluntary intoxication defense, which was inconsistent with the underlying defense theory of the ca

2004See id. [4] Huff v. State, 622 So.2d 982 (Fla.1993). [5] Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). [6] The ten claims presented by Pietri are: (1) ineffective assistance of counsel (hereinafter "IAOC") for failing to raise a voluntary intoxication defense during the guilt phase; (2) IAOC during the jury selection process; (3) the trial court erred in adjudicating Pietri guilty of first-degree murder; (4) IAOC for failing to adequately investigate and present available mitigation during the penalty phase; (5) the trial court erred in denying Pietri's publi

2006See Jones v. State, 855 So.2d 611, 616-617 (Fla.2003); Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). [3] *879 Furthermore, we have said that counsel's decision not to pursue a voluntary intoxication defense was not ineffective assistance where no evidence was presented that defendant was intoxicated at the time of the crime although there has been a history of drug abuse.

2002Id.

2006See id. at 944 .

2003Reaves v. State, 826 So.2d 932 (Fla.2002).

2003See Straitwell, 834 So.2d 918 .

2003Moreover, "whether counsel was ineffective for failing to discuss and explore with a defendant the possibility of utilizing a voluntary intoxication defense is appropriately determined through an evidentiary hearing." Straitwell, 834 So.2d at 920-21 .