JOHN JUDD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that allegations of a sleeping juror, communicated to counsel who failed to object, are sufficient to require an evidentiary hearing or record attachments refuting the claim.
Appellant sought post-conviction relief, alleging ineffective assistance of counsel for failing to object to a sleeping juror. The trial court summari…
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[*104] PER CURIAM.
This is an appeal by John Judd from an order denying a motion filed under rule 3.850, Florida Rules of Criminal Procedure. We affirm in part, reverse in part, and remand.
Appellant filed a motion for post-conviction relief alleging a claim of newly discovered evidence and a multifaceted claim of ineffective assistance of counsel. At issue here is appellant’s claim alleging ineffective assistance of his trial counsel for failing to object to the presence of a sleeping juror. This court has previously reversed the summary denial of rule 3.850 motions in which the defendant alleged his trial counsel was ineffective in failing to object to a sleeping juror. See, e.g., Erlsten v. State, 842 So. 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 failed to bring this information to the attention of the court. These allegations, in accordance with the aforementioned cases, are sufficient for an evidentiary hearing.
Accordingly, we reverse the summary denial of this ground for either an evidentiary hearing or the attachment of portions of the record that conclusively refute this ground for relief. We affirm without discussion the summary denial as to the balance of the motion for post-conviction relief.
Affirmed in part, Reversed in part, and Remanded.
STEVENSON, C.J., GUNTHER and SHAHOOD, JJ., concur.
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Reynolds v. State, 99 So. 3d 459 (Fla. 2012)…le, the Fourth District held that the defendant presented a “legally and factually sufficient” claim that defense counsel failed to object to a sleeping juror and the postconviction 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 a…
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Williams v. State, 80 So. 3d 1102 (Fla. 4th DCA 2012)…claim. See Erlsten v. State, 842 So. 2d 967 (Fla. 4th DCA 2003), and cases cited therein. We agree that the trial court erred in summarily denying this ground for relief. See also Terrell v. State, 9 So. 3d 1284 (Fla. 4th DCA 2009); Judd v. State, 951 So. 2d 103 (Fla. 4th DCA 2007). Accordingly, we reverse and remand the summary denial of this ground for further proceedings. We affirm the summary denial of the second and fifth grounds without further discussion. Although the trial court denied the third a…
Authorities Cited
- Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984)
- Antoine Henderson v. State, 842 So. 2d 967 (Fla. 4th DCA 2003)
- Simo v. State, 790 So. 2d 1190 (Fla. 4th DCA 2001)
- Kelley v. State, 805 So. 2d 88 (Fla. 2d DCA 2002)
- Wilson v. State, 828 So. 2d 1086 (Fla. 1st DCA 2002)
- Anderson v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001)
- McGRAW v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001)
- Gary v. Crosby, 842 So. 2d 967 (Fla. 4th DCA 2003)