Bacon v. State

¶1The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. The summary denial of the appellant’s colorable claim that his trial counsel was ineffective for failing to pursue a voluntary intoxication defense is reversed. See, e.g., Hester v. State, 23 Fla. L. Weekly D1567, - So.2d -, 1998 WL 323517 (Fla. 1st DCA June 22, 1998),; Bartley v. State, 689 So.2d 372 (Fla. 1st DCA 1997); Spivey v. State, 680 So.2d 565 (Fla. 1st DCA 1996); Morris v. State, 670 So.2d 1151 (Fla. 1st DCA 1996). In denying the appellant’s claim, the trial court observed that the defense presented at trial, mistaken identity, suggested a tactical decision by trial counsel not to present the voluntary intoxication de*965fense. But presentation of an arguably inconsistent defense, standing alone, does not conclusively show that failure to present a voluntary intoxication defense was a tactical decision. Hester. See also Kiser v. State, 678 So.2d 859 (Fla. 1st DCA 1996); Williams v. State, 647 So.2d 996 (Fla. 1st DCA 1994); Thomas v. State, 634 So.2d 1157 (Fla. 1st DCA 1994). The order under review is otherwise affirmed, and this case is remanded for further proceedings under rule 3.850.