BRIAN S. KELLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's claim regarding a sleeping juror was facially sufficient and required further proceedings.
The defendant alleged a juror slept through significant portions of his trial and that his counsel waived this issue without permission. The trial cou…
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SALCINES, Judge.
Brian S. Kelley timely appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Kelley raises nineteen issues. We affirm eighteen of the issues without comment. We reverse and remand on the remaining issue.
Kelley claims that one of the jurors slept through substantial portions of the State’s case and had to be awakened by a bailiff. Kelley identifies several people who spoke to defense counsel about the sleeping juror during the trial. Defense counsel used this issue to move for a new trial, but at the hearing on the motion for new trial, defense counsel told the trial court that Kelley had authorized him to waive the issue. Kelley denies this and further alleges that his defense attorney told him he would obtain affidavits from witnesses and the bailiff. Nothing in the record indicates that he contacted the bailiff. Kelley alleges that defense counsel failed to investigate the motion fully, failed to file the affidavits, and then waived the issue without Kelley’s permission, telling the trial court that his motion could not be substantiated.
Kelley has made a facially sufficient claim which the trial court failed to refute conclusively. See Moran v. State, 750 So. 2d 132 (Fla. 2d DCA 2000) (holding that defendant made a facially sufficient claim by alleging that trial counsel knew of potential witnesses, but failed to investigate and produce them at a motion for new trial based on juror misconduct). We reverse and remand on this claim. In spite of the trial court’s recognized diligence observing the jury during the trial, the bailiffs recollections would have clarified this matter. The trial court shall either provide attachments from the record that conclusively refute Kelley’s claim or conduct an evidentiary hearing on the issue.
Affirmed in part, reversed in part, and remanded.
FULMER and DAVIS, JJ., Concur.
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Wilson v. State, 828 So. 2d 1086 (Fla. 1st DCA 2002)…ng 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 evidentiary hearing to determine whether his counsel was in…
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Judd v. State, 951 So. 2d 103 (Fla. 4th DCA 2007)…1190 (Fla. 4th DCA 2001); McGraw v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001); Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984). Other courts have done so as well. See, e.g., Wilson v. State, 828 So. 2d 1086 (Fla. 1st DCA 2002); Kelley v. State, 805 So. 2d 88 (Fla. 2d DCA 2002). In the instant appeal, appellant alleged that a specific juror was sleeping during his trial, that he informed his trial counsel of the sleeping juror, and that his counsel failed to bring this information to the attention of the…
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Erlsten v. State, 842 So. 2d 967 (Fla. 4th DCA 2003)…1190 (Fla. 4th DCA 2001); McGraw v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001); Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984). Other courts have done so as well. See, e.g., Wilson v. State, 828 So. 2d 1086 (Fla. 1st DCA 2002); Kelley v. State, 805 So. 2d 88 (Fla. 2d DCA 2002). Counsel may have had strategic reasons for not seeking to replace the sleeping juror during the trial, but a trial court’s finding that a decision was tactical [*969] usually is inappropriate without an eviden-tiary hearing. See,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moran v. State, 750 So. 2d 132 (Fla. 2d DCA 2000)