DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2012
LARRY WILLIAMS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D10-3167
[February 22, 2012]
PER CURIAM.
Larry Williams (Defendant) appeals an order summarily denying his
motion for postconviction relief, filed pursuant to rule 3.850, Florida
Rules of Criminal Procedure. We affirm in part and reverse in part.
Following a jury trial, Defendant was found guilty as charged of second
degree murder with a firearm as to one victim and attempted first degree
murder with a firearm as to another victim.
The first ground of his timely rule 3.850 motion—which was reiterated
in his timely amended motion, after the first motion was denied without
prejudice to amend—was ineffective assistance of counsel in failing to
notify the trial court that a juror was sleeping during critical testimony.
Defendant alleged he informed trial counsel numerous times that one of
the jurors was sleeping, but counsel failed to bring this information to
the trial court’s attention so that, in effect, he was convicted by a jury of
five. Defendant argued that he was prejudiced because, had counsel
alerted the court, the alternate juror could have taken the sleeping
juror’s place. He cited numerous decisions in which this court and
others have reversed the summary denial of rule 3.850 motions raising
the same 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 and fourth grounds on the
merits, the defendant has failed to demonstrate that these grounds were
not untimely because they were raised for the first time in his amended
motion, which was filed after the expiration of the two-year period for
filing a rule 3.850 motion, a n d no exception appears to apply.
Accordingly, the summary denial of these two grounds is affirmed
because they were untimely raised. See Rincon v. State, 996 So. 2d 922
(Fla. 4th DCA 2008) (affirming denial of amended postconviction motion
that trial court should not have considered because it was untimely);
Lanier v. State, 826 So. 2d 460 (Fla. 1st DCA 2002).
Affirmed in Part, Reversed in Part, and Remanded.
GROSS, TAYLOR and CONNER, JJ., concur.
*
*
*
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; John Kastrenakes,
Judge; L.T. Case No. 2004CF003122AXX.
Larry Williams, Immokalee, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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