JIMMIE J. WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance of counsel for failing to notify the court of a sleeping juror is facially sufficient if the juror slept during critical testimony.
Appellant sought postconviction relief, alleging ineffective assistance of counsel. His first claim was that counsel failed to inform the court that a…
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PER CURIAM.
The appellant challenges the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion and supplement, the appellant brought three distinct claims. The appellant’s second claim is without merit, and his third claim is proeedurally barred. However, we reverse the summary denial of the appellant’s first claim, that his counsel was ineffective for failing to notify the trial court that a juror was sleeping during critical trial testimony.
The trial court denied the claim as facially insufficient, reasoning that the appellant did not properly allege that he was prejudiced. However, we conclude that under Florida law the appellant’s claim is facially sufficient where he alleged that his counsel failed to notify the court that a juror was sleeping during testimony concerning the identification of the appellant 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 ineffective for failing to inform the trial court that a juror was asleep during presentation of the evidence. The summary denial of the remaining issues is AFFIRMED.
BARFIELD, MINER and POLSTON, JJ., concur.
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Reynolds v. State, 99 So. 3d 459 (Fla. 2012)…of all involved. In Terrell, the trial court erred in summarily denying the claim because the sleeping juror situation was not addressed at trial — thus, addressing this problem at trial was the issue. See 9 So. 3d at 1290; see also Wilson v. State, 828 So. 2d 1086, 1086-87 (Fla. 1st DCA 2002) (reversing and remanding the summary denial of a claim of ineffective assistance of counsel because trial counsel failed to notify the court that a juror was sléeping during critical testimony). In this case, however, th…
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Judd v. State, 951 So. 2d 103 (Fla. 4th DCA 2007)…2d 967 (Fla. 4th DCA 2003); Simo v. State, 790 So. 2d 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 fail…
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Erlsten v. State, 842 So. 2d 967 (Fla. 4th DCA 2003)…sleeping juror. See, e.g., Simo v. State, 790 So. 2d 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…
Previewing 3 of 4 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)
- Kelley v. State, 805 So. 2d 88 (Fla. 2d DCA 2002)
- Anderson v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001)
- McGRAW v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001)
- Wilson v. State, 677 So. 2d 59 (Fla. 1st DCA 1996)
- Bieser v. State, 677 So. 2d 59 (Fla. 1st DCA 1996)