THOMPSON v. STATE (2004)

Ivory Lee Thompson challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.   In his motion and amendment, he brought a total of eight claims.   We affirm without comment the summary denial of the seven claims brought forth in his original motion.   We reverse the summary denial of the sole claim brought forth in his amendment and remand for the circuit court to hold an evidentiary hearing.

Thompson claims that his trial counsel was ineffective for failing to notify the trial judge that a juror was sleeping during “critical testimony.”   The circuit court denied the claim as facially insufficient, finding that Thompson did not properly allege both that he was prejudiced and that the testimony was critical.   We agree with the First District in concluding 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.”  Wilson v. State, 828 So.2d 1086, 1086 (Fla. 1st DCA 2002);  see also Kelley v. State, 805 So.2d 88 (Fla. 2d DCA 2002);  Bieser v. State, 677 So.2d 59 (Fla. 1st DCA 1996).

Accordingly, we reverse the summary denial of this claim and remand to the circuit court for an evidentiary hearing to determine whether Thompson's counsel was ineffective for failing to inform the trial judge that a juror was asleep during the presentation of evidence.

Affirmed in part;  reversed in part;  and remanded.

DAVIS, Judge.

KELLY and VILLANTI, JJ., Concur.