KENNEDY v. STATE, 633 So.2d 1145 (Fla.App. 2 Dist. 1994)

SCOTT DAVID KENNEDY, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 93-03886.District Court of Appeal of Florida, Second District.
March 18, 1994.

Appeal from the Circuit Court, Hillsborough County, Donald C. Evans, J.

PER CURIAM.

Scott Kennedy appeals the summary denial of his motion for post-conviction relief

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from his plea to strong-armed robbery. Fla. R.Crim.P. 3.850. One ground raised in the motion warrants an evidentiary hearing.

Kennedy argues that trial counsel’s failure to correctly advise him on the defense of voluntary intoxication influenced his decision to enter a guilty plea. Attached to the motion are affidavits alleging that Kennedy was under the influence of crack cocaine at the time of the robbery. Kennedy contends that trial counsel told him that his intoxication at the time of the robbery did not constitute a legal defense because it was voluntary.

The correct statement of the law is that voluntary intoxication is a valid defense to a specific intent crime. Linehan v. State, 476 So.2d 1262 (Fla. 1985). Robbery being a specific intent crime, counsel’s alleged advice was incorrect. Bell v. State, 394 So.2d 979 (Fla. 1981). If the allegation in the motion is true, Kennedy should be given the opportunity to withdraw his plea and proceed to trial, where he potentially faces a sentence of thirty years in prison as a habitual felony offender.

We therefore reverse the summary denial of post-conviction relief on the ground discussed above and remand for an evidentiary hearing to ascertain whether counsel misstated the defense of involuntary intoxication. We affirm the order in all other respects.

Reversed and remanded.

RYDER, A.C.J., and THREADGILL and BLUE, JJ., concur.