       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            NEAL JACOBSON,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-1778

                              [May 13, 2015]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Stephen A. Rapp,
Judge; L.T. Case No. 502010CF000836A.

   Neal Jacobson, Indiantown, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    Neal Jacobson shot and killed his wife and kids and then attempted to
take his own life by overdosing on pills. In exchange for the State not
seeking a death sentence, he entered a guilty plea to three counts of first-
degree murder with a firearm and was sentenced to life in prison on each
count without the possibility of parole. He did not file a direct appeal but
filed a second amended motion for post-conviction relief, which the trial
court summarily denied. Jacobson now appeals that denial. In the
motion, he raised thirteen overlapping claims of ineffective assistance of
trial counsel and/or involuntary pleas. We affirm without further
discussion the trial court’s summary denial except for grounds three and
six, which we address below.

   In ground three, Jacobson alleged that, at the time of the offenses, he
was taking legal prescriptions for Zoloft and Xanax and that he was also
suffering from hypothyroidism. He alleged that the medications, when
combined with his medical condition, resulted in his being temporarily
legally insane at the time of the offenses. He claimed defense counsel
erroneously advised him that Florida law did not recognize an involuntary
intoxication defense in these circumstances. Had he been properly
informed on the law, he alleged he would not have accepted the State’s
plea offer and would have gone to trial instead.

   While section 775.051, Florida Statutes (1999), abolished the defense
of voluntary intoxication, this statute provides an exception when the
“consumption, injection, or use of a controlled substance under chapter
893 was pursuant to a lawful prescription issued to the defendant by a
practitioner as defined in s. 893.02.” This exception “is essentially a
codification of the involuntary intoxication defense previously
acknowledged by this court.” Montero v. State, 996 So. 2d 888, 891 (Fla.
4th DCA 2008) (citing Lucherini v. State, 932 So. 2d 521, 522 n.1 (Fla. 4th
DCA 2006)). It applies when the defendant “unexpectedly becomes
intoxicated by prescribed medication that is taken in a lawful manner.”
Id. (citing Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997)).
Involuntary intoxication is an affirmative defense, and defendant has “the
burden to establish the defense and present evidence that he was taking
the medication as prescribed and pursuant to a lawful prescription.”
Stimus v. State, 995 So. 2d 1149, 1151 (Fla. 5th DCA 2008).

    We cannot agree with the State’s argument that this ground was legally
insufficient due to Appellant’s failure to allege that he took the medications
in the prescribed dosages or failure to advise counsel that he unexpectedly
became intoxicated. Appellant’s amended motion made the required
allegations. The State offered no record support for its contention that the
claim should fail because appellant abused the prescribed medication.

   The trial court erred in rejecting this claim based on Stano v. State, 520
So. 2d 278 (Fla. 1988), in which the Florida Supreme Court held that once
a defendant enters a guilty plea and assures the court it is voluntary, the
plea cuts off inquiry into all that preceded it. Id. at 280. A claim of
ineffective assistance of counsel for failure to advise a defendant of a
potential defense can state a valid claim if defendant was unaware of the
defense and can establish that a reasonable probability exists that he
would not have entered the plea if properly advised. See Montero, 996 So.
2d at 890; Rouzard v. State, 952 So. 2d 1290, 1292 (Fla. 4th DCA 2007);
Ethridge v. State, 766 So. 2d 413, 414 (Fla. 4th DCA 2000).

   In ground six, appellant alleged counsel failed to advise him that he
could assert an insanity defense. He alleged that, while counsel filed a
notice of intent to rely on an insanity defense, she did not advise him of
this filing. Appellant argued that counsel should have advised him that
insanity could have constituted a complete defense, and he cited a
psychologist’s report concluding that he was insane at the time of the

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offenses. Appellant further alleged he would not have entered his plea had
counsel properly advised him that he had the right to assert the insanity
defense as a complete defense.

   Appellant cites Watts v. State, 136 So. 3d 1225, 1226 (Fla. 1st DCA
2014), which held that a sufficient claim of ineffective assistance of counsel
for advising a defendant to enter a plea without informing him that an
insanity defense was available should be addressed in an evidentiary
hearing if there is nothing of record to refute it.

   The State acknowledges in its answer brief that one doctor opined in a
report that appellant was insane at the time of the offenses. Another
doctor, who examined appellant closer in time to the murders, believed he
was not psychotic at the time of the interview. That report did not address
whether appellant was insane at the time of the offenses. The State has
not shown that the record conclusively refutes the claim, and it is not for
this Court to determine whether one report is more credible than the other,
even if they did contain opinions on exactly the same issue.

    The State postulates that defense counsel must have made a tactical
decision not to proceed with an insanity defense. Whether counsel’s action
or inaction was based on a strategic or tactical decision is a determination
ordinarily requiring an evidentiary hearing. Griggs v. State, 744 So. 2d
1145, 1145 (Fla. 4th DCA 1999).

   If granted an evidentiary hearing on either ground, Jacobson will have
the burden of establishing his claims by coming forward with evidence to
support the viability of the defenses. See Grosvenor v. State, 874 So. 2d
1176, 1179 (Fla. 2004) (explaining that “the viability of the defense is
relevant to the credibility of the assertion that the defendant would have
insisted on going to trial if informed of that defense”).

   Accordingly, we reverse and remand for attachment of portions of the
record refuting claims three and six, or an evidentiary hearing.

   Affirmed in part, reversed and remanded in part.

WARNER, STEVENSON and GERBER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.



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