McGraw v. State

796 So. 2d 1205 (2001)

Ronald McGRAW, Appellant,
v.
STATE of Florida, Appellee.

No. 4D01-1882.

District Court of Appeal of Florida, Fourth District.

September 26, 2001.

Ronald McGraw, Bontifay, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Judy Hyman, Assistant Attorney General, West Palm Beach, for appellee.

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.