HOWARD A. BIESER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court's summary denial of postconviction relief was improper as to claims that trial counsel failed to address a sleeping juror and failed to object to closed-circuit testimony from a child victim, requiring remand for evidentiary hearing.
A trial court may not summarily deny a Rule 3.850 motion alleging that trial counsel failed to act upon learning a juror was sleeping during critical testimony or failed to object to closed-circuit testimony from a child victim.
[1] A trial court may not summarily deny a postconviction relief motion under Florida Rule of Criminal Procedure 3.850 when the motion alleges that trial counsel failed to ac…
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Court identifying the specific claims that should not have been summarily denied
Appellant Bieser was convicted of sexual battery and filed a postconviction motion under Florida Rule of Criminal Procedure 3.850 raising multiple ine…
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PER CURIAM.
The trial court summarily denied appellant’s motion for postconviction relief that was filed pursuant to Florida Rule of Criminal Procedure 3.850. In addition to claiming that ineffective assistance was rendered by two of appellant’s former attorneys who did not participate in his sexual battery trial, the motion also alleged ineffective assistance on the part of trial counsel for inadequate preparation. Although these claims are facially insufficient as set forth in the motion and were properly denied, the appellant has raised two grounds for relief that the state correctly concedes should not have been subject to summary denial. Specifically, appellant alleged that trial counsel failed to act upon being informed that one of the jurors was sleeping through critical defense testimony, see Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984), and failed to object to the introduction of closed circuit testimony from the child victim.1 Consequently, we remand these two claims to the trial court for an evidentiary hearing or for attachment of portions of the record conclusively refuting the claims.
AFFIRMED in part, REVERSED in part and REMANDED.
MINER, ALLEN and LAWRENCE, JJ., concur. . We note that the counsel's failure to object precluded this claim from being raised on direct appeal. See Hopkins v. State, 632 So. 2d 1372 (Fla.1994).
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McCLENDON v. State, 765 So. 2d 247 (Fla. 1st DCA 2000)…t upon being informed that one of the jurors was sleeping, 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…
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Wilson v. State, 828 So. 2d 1086 (Fla. 1st DCA 2002)…that a juror was sleeping during testimony concerning the identification of the appellant [*1087] as the perpetrator and the subsequent impeachment of that identification. See McClendon v. State, 765 So. 2d 247 (Fla. 1st DCA 2000); Bieser v. State, 677 So. 2d 59 (Fla. 1st DCA 1996); Kelley v. State, 805 So. 2d 88 (Fla. 2d DCA 2002); McGraw v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001). Accordingly, we REVERSE the sum-, mary denial of the appellant’s first claim and REMAND to the trial court for an evident…
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Garnto v. State, 830 So. 2d 901 (Fla. 2d DCA 2002)…of law. In fact, the allegations in his motion and memorandum concerning these claims are facially insufficient. See Honors v. State, 752 So. 2d 1234 (Fla. 2d DCA 2000) (reviewing a claim of failure to call an exculpatory witness); Bieser v. State, 677 So. 2d 59 (Fla. 1st DCA 1996) (reviewing a claim of failure to act upon being informed that one of the jurors was sleeping through critical defense testimony). It is only the allegations contained in his motion and memorandum that the trial court reviewed bef…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Hopkins v. State, 632 So. 2d 1372 (Fla. 1994)
- Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984)