         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-1573
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BOBBY KEVIN WILLIAMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Santa Rosa County.
John F. Simon, Judge.

                          July 11, 2018


PER CURIAM.

     Following a jury trial, Bobby Kevin Williams was convicted of
grand theft and failure to appear. This Court affirmed his
judgment and sentence. Williams now challenges the final order of
the postconviction court on his claims of ineffective assistance of
trial counsel. We agree with the court’s assessment of all but one
of his claims.

     In his first claim, Williams alleged that during jury
deliberations, when neither defense counsel nor the trial judge was
present, the jury asked to review the surveillance video in
evidence. The prosecutor responded by informing the bailiff that
the jury could view the recording on the court’s video player. The
bailiff returned a few minutes later and informed the prosecutor
that the video player was not working properly. The prosecutor
then accompanied the bailiff into the jury room to show the jurors
how to view the video on the prosecutor’s laptop. When defense
counsel returned, Williams told counsel about what had happened,
but counsel declined to bring the issue to the court’s attention.
Williams attached two witness affidavits to his motion to support
his claim. He submits that he was deprived of a fair and impartial
trial due to counsel’s inaction in the face of clear prosecutorial
misconduct.

     The postconviction court determined that the claim was
facially insufficient because it failed to properly allege prejudice.
After giving Williams two opportunities to amend, the court
dismissed the claim with prejudice.

     To state a facially sufficient claim of ineffective assistance of
counsel, the movant must allege deficient performance on the part
of trial counsel and prejudice resulting from that deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Accepting Williams’s allegations as true, which we must do at this
stage of our review, see Flagg v. State, 179 So. 3d 394, 396 (Fla. 1st
DCA 2015), we conclude that it was error for the court to dismiss
this claim. See Brown v. State, 538 So. 2d 833, 836 (Fla. 1989)
(“[C]ommunications from the jury must be received by the trial
judge in person and . . . the absence of the judge when a
communication is received and answered is reversible error.”);
Harbaugh v. State, 711 So. 2d 77, 80 (Fla. 4th DCA 1998) (“[A] trial
judge is required to be present at any aspect of the trial where the
lawyers or the parties are in extended contact with the jury, unless
the defendant himself makes a sufficient waiver on the record of
the judge's presence.”).

     We therefore reverse the dismissal of this claim and remand
for the court either to attach records that conclusively refute the
allegations or to conduct an evidentiary hearing to determine the
merits of the claim. The order is affirmed in all other respects.

     AFFIRMED in part, REVERSED in part, and REMANDED with
directions.

B.L. THOMAS, C.J., and WOLF and RAY, JJ., concur.


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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Kerry Adkison, Chipley, for Appellant.

Pamela Jo Bondi, Attorney General, and Robert "Charlie" Lee,
Assistant Attorney General, Tallahassee, for Appellee.




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