RONALD MCGRAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a postconviction motion alleging ineffective assistance of counsel due to counsel's inaction regarding a sleeping juror should not have been summarily denied.
Appellant alleged his trial counsel failed to act when a juror slept during trial, despite the trial court bringing the matter to counsel's attention.…
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PER CURIAM.
Ronald McGraw appeals the summary denial of his postconviction motion. We find that further proceedings are required on one of his allegations. McGraw alleged that his trial counsel failed to take any action when a juror dozed off during trial. The trial court brought the matter of the sleeping juror to the attorneys’ attention. Defense counsel did not act on that information, other than to promise to keep an eye on the juror and bring it to the court’s attention if she 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 denial order is affirmed on appellant’s remaining claims.
KLEIN, STEVENSON and HAZOURI, JJ., concur.
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Reynolds v. State, 99 So. 3d 459 (Fla. 2012)…uror.” 790 So. 2d 1190, 1191 (Fla. 4th DCA 2001) (holding the trial court erred in summarily denying the claim of ineffective assistance for “failing to object and in waiving objection to the presence of a sleeping juror”); see also McGraw v. State, 796 So. 2d 1205, 1206 (Fla. 4th DCA 2001) (noting that it is “usually improper to summarily deny a claim that counsel failed to act upon being informed that a juror was sleeping during trial”). In this case, defense counsel did not request the removal of the sleepi…
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Wilson v. State, 828 So. 2d 1086 (Fla. 1st DCA 2002)…he 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 evidentiary hearing to determine whether his counsel was ineffective for failing to inform the trial court that…
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Mitchell v. State, 846 So. 2d 559 (Fla. 4th DCA 2003)…ssue should have been raised on direct appeal, but nothing is attached to the order to indicate that there was anything in the record which might have alerted appellate counsel to such an issue. The ground is legally sufficient. See McGraw v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001); Thomas v. State, 700 So. 2d 407, 408 (Fla. 4th DCA 1997). Appellant’s second ground alleged that on the last day of his trial, August 7, 1997, the presiding judge instructed the bailiff to lock the courtroom doors, and, as a co…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCLENDON v. State, 765 So. 2d 247 (Fla. 1st DCA 2000)
- Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984)