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IN THE DISTRICT COURT OF
APPEAL
FIRST DISTRICT, STATE OF
DONALD WILSON,
FLORIDA
Appellant,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
v.
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
CASE NO. 1D03-0581
Appellee.
_____________________________/
Opinion filed April 19, 2004.
An appeal from an order of the Circuit Court for Clay County.
Frederic A. Buttner, Judge.
Donald Wilson, pro se, for Appellant.
Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General,
Tallahassee, for Appellee.
LEWIS, J.
Appellant, Donald Wilson, appeals the summary denial of his motion for
postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We
affirm in part, and reverse in part and remand for an evidentiary hearing.
Appellant previously challenged the trial court's summary denial of his Florida

Rule of Criminal Procedure 3.850 motion, and this Court affirmed in part, reversed in
part and remanded for further record attachments or for an evidentiary hearing. See
Wilson v. State, 832 So. 2d 883 (Fla. 1st DCA 2002). On remand, the trial court again
summarily denied appellant's motion and attached appellant's judgment and sentence,
criminal punishment code scoresheet, plea agreement, and plea colloquy in support of
the denial. This appeal followed.
"Rule 3.850 explicitly requires that the record `conclusively' rebut an otherwise
cognizable claim if it is to be denied without a hearing." State v. Leroux, 689 So. 2d
235, 237 (Fla. 1996). Of the five claims appellant raised in his motion for
postconviction relief, we find that two of the claims are not conclusively refuted by the
plea colloquy or other record attachments. See State v. Coney, 845 So. 2d 120, 134,
135 (Fla. 2003) (citing LeCroy v. Dugger, 727 So. 2d 236 (Fla. 1998)).
Appellant's entry of a plea, plea colloquy, and other record attachments do not
conclusively refute his first claim that his counsel failed to investigate evidence that
would have supported a motion to suppress incriminating statements he gave to police
while in custody without being informed of his Miranda rights, and that his counsel
should have filed a motion to suppress. Appellant alleges that he would not have
entered a plea in the absence of these alleged failures. See Stano v. State, 520 So. 2d
278, 280 (Fla. 1988); Lester v. State, 773 So. 2d 1188, 1190 (Fla. 2d DCA 2000);
2

Fortner v. State, 538 So. 2d 85, 86 (Fla. 2d DCA 1989) (holding that the allegation in
the context of a plea that trial counsel failed to move to suppress an incriminating
statement constituted a facially sufficient claim). The record demonstrates that
between the time appellant entered his plea and the time that he appeared for
sentencing, appellant expressed concern that his attorney had not filed a motion to
suppress the statements appellant made to police officers. The record offers no
indication that appellant's attorney addressed this concern of appellant's, or that
appellant had been made aware of a potential suppression issue prior to entering his
plea. See Jenrette v. State, 761 So. 2d 414 (Fla. 2d DCA 2000) (holding that the
appellant's claim that his counsel was ineffective for failing to file a motion to suppress
a confession the appellant gave without being informed of his Miranda rights was
facially sufficient). Therefore, we reverse the trial court's summary denial of this claim
and remand for an evidentiary hearing.
The plea colloquy and other record attachments do not refute the portion of
appellant's second claim in which he alleged that trial counsel failed to depose the
police officers who coerced his confession while he was in custody without advising
him of his Miranda rights, as that allegation relates to the suppression issue raised in
appellant's first claim. See Smith v. State, 815 So. 2d 707, 707 (Fla. 1st DCA 2002)
(holding that the appellant's allegation that counsel failed to properly investigate a
3

potential defense witness was facially sufficient and not negated by the appellant's
plea, as the appellant alleged that he would not have entered a plea in the absence of
the alleged failure). As such, we reverse the trial court's summary denial and remand
for an evidentiary hearing as the record attachments do not conclusively refute this
portion of appellant's second claim. As to the portion of appellant's second claim
alleging that counsel was ineffective for failing to investigate and depose various other
witnesses, we affirm the trial court's summary denial, as appellant has not
demonstrated how this alleged error affected the outcome of his proceeding.
With regard to appellant's third claim, that trial counsel failed to prepare and
develop viable defenses to the charges against him, it is apparent from the record that
appellant had raised the issue of self-defense with his defense counsel prior to the
entry of his plea. Cf. Stanley v. State, 703 So. 2d 1156, 1157 (Fla. 2d DCA 1997)
(noting defenses which were not brought to defendant's attention cannot be waived);
Seraphin v. State, 706 So. 2d 913 (Fla. 4th DCA 1998) (reversing where defendant
alleged counsel failed to advise him of a viable defense); McCoy v. State, 598 So. 2d
169 (Fla. 1st DCA 1992) (reversing where appellant alleged counsel failed to consider
a defense). Based on this previous discussion and the language contained in the plea
agreement form, we determine that appellant knowingly waived the right to pursue a
claim that his counsel was deficient for failing to investigate a "self- defense" defense.
4

The plea agreement form specifically provides:
Consultation with Attorney:
. . .
We have fully discussed all aspects of this case, including all possible
defenses to all charges, including self-defense and any defense based
upon any disability disease, insanity, or intoxication. My attorney has
given me the opportunity to ask questions and has answered all my
questions fully and completely. My attorney has taken all actions
requested by me, or has explained to my satisfaction and
agreement why such actions should not be taken, and I concur with
my attorney's decisions in that regard. I am completely satisfied with the
services rendered by my attorney on my behalf in this case.
(emphasis added). Additionally, during the plea colloquy appellant acknowledged that
(1) each portion of the plea agreement form was explained to him; (2) he understood
the plea form; (3) his attorney answered all of his questions; (4) he understood and
was satisfied with what his attorney told him; and (5) he was satisfied with counsel's
services. He specifically acknowledged that he was waiving his right to assert any
defense.
THE COURT:
You recognize and understand if you had any defense
to this charge once I accept the plea that defense is no longer available
to you?
THE DEFENDANT:
Yes, sir.
We find that the specific language of the plea agreement and discussion at the plea
colloquy, coupled with the fact that the issue of "self-defense" had been raised with
5

counsel prior to the plea agreement warrants affirmance on this issue.
In appellant's third claim for relief, he also claims that his trial counsel failed to
conduct an adequate pre-trial investigation and prepare a viable defense concerning
voluntary intoxication. The defense of involuntary intoxication is not available for
general intent crimes, including the second-degree murder charge against appellant.
See Jackson v. State, 699 So. 2d 306, 308 (Fla. 1st DCA 1997). Voluntary
intoxication is also not a defense to the general intent crime of manslaughter, the crime
to which appellant pled. See Webster v. State, 744 So. 2d 1034, 1035 (Fla. 1st DCA
1999). Appellant's counsel could not be ineffective for failing to pursue this non-
viable defense. We affirm the trial court's denial of relief on the remaining claims
without discussion.
AFFIRMED in part; REVERSED in part and REMANDED.
WOLF, C.J. and POLSTON, J., CONCUR.
6

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