ROBERT KESICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Reversed and remanded for an evidentiary hearing on appellant’s allegations in his motion for post-conviction relief of prosecutorial misconduct and ineffective assistance of counsel. Specifically, appellant alleges that his counsel failed to act when informed by the prosecutor that one of the jurors was sleeping during a portion of the trial. Among the attachments to appellant’s motion is a letter from his trial counsel apparently acknowledging the incident concerning the sleeping juror. Cf. Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983); Parker v. State, 336 So. 2d 426 (Fla. 1st DCA 1976). We note that these allegations were contained among a multitude of other allegations made by appellant which we find, as did the trial court, lack merit.
ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.
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Reynolds v. State, 99 So. 3d 459 (Fla. 2012)…court erred in summarily denying the claim. See also Judd v. State, 951 So. 2d 103, 104 (Fla. 4th DCA 2007); Erlsten v. State, 842 So. 2d 967, 968-69 (Fla. 4th DCA 2003); McClendon v. State, 765 So. 2d 247, 248 (Fla. 1st DCA 2000); Reside v. State, 448 So. 2d 644, 644 (Fla. 4th DCA 1984). The Terrell court, accordingly, reversed and remanded for an evidentiary hearing on this claim. See 9 So. 3d at 1290. Conversely, the Fourth District has also affirmed the denial of sleeping juror claims when trial counsel…
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McCLENDON v. State, 765 So. 2d 247 (Fla. 1st DCA 2000)…eping, the trial court resolved factual issues. Because this claim should not have been subject to summary denial, we reverse and remand for further proceedings under the rule. See Bieser v. State, 677 So. 2d 59 (Fla. 1st DCA 1996); Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984). Second, the trial court failed to address McClendon’s claim that defense counsel was ineffective for failing to request a jury instruction on resisting a merchant. McClendon was charged with armed robbery and, as he asserts, “…
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McGRAW v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001)…noticed him sleeping again. It is usually improper to summarily deny a claim that counsel failed to act upon being informed that a juror was sleeping during trial. See, e.g., McClendon v. State, 765 So. 2d 247 (Fla. 1st DCA 2000); Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984). In this case, the record did not conclusively disprove appellant’s allegations about either counsel’s performance or the resulting prejudice. We reverse the denial of this claim only, and remand for an evidentiary hearing. The…
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- Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)
- Parker v. State, 336 So. 2d 426 (Fla. 1st DCA 1976)