          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


STANLEY L. COLLINS,

               Appellant,

 v.                                                     Case No. 5D15-3916

STATE OF FLORIDA,

               Appellee.

________________________________/

Opinion filed June 24, 2016

3.850 Appeal from the Circuit
Court for Volusia County,
Randell H. Rowe, III, Judge.

Stanley L. Collins, Bristol, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and L. Charlene Matthews,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

       Stanley Collins appeals the summary denial of his motion for postconviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the circuit court’s

summary denial of the second and fifth grounds for relief, and affirm the granting of

Appellant’s fourth ground for relief. We reverse the circuit court’s summary denial of the

first and third grounds for relief.
       In his motion for postconviction relief, Appellant asserts that he received and was

prejudiced by ineffective assistance of his trial counsel. In order to establish ineffective

assistance of counsel, Appellant must meet the two prongs of the Strickland test:

              First, the defendant must show that counsel’s performance
              was deficient. This requires showing that counsel made
              errors so serious that counsel was not functioning as the
              “counsel” guaranteed the defendant by the Sixth Amendment.
              Second, the defendant must show that the deficient
              performance prejudiced the defense. This requires showing
              that counsel’s errors were so serious as to deprive the
              defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). “Unless a defendant makes both

showings, it cannot be said that the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.” Id. To satisfy the first prong,

Appellant must establish that “counsel’s representation ‘fell below an objective standard

of reasonableness.’” Sochor v. State, 883 So. 2d 766, 771 (Fla. 2004) (citing Strickland,

466 U.S. at 688). The second prong is met when “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694. “Ineffective assistance of counsel claims are

mixed questions of law and fact.” Bell v. State, 965 So. 2d 48, 56 (Fla. 2007). The

appellate court reviews “the legal issues under a de novo standard of review” while the

trial court’s “factual determinations are given deference if they are supported by

competent, substantial evidence.” Id.

          PREEMPTIVE DISCLOSURE OF PRIOR FELONY CONVICTIONS

       Appellant was charged with and convicted of, inter alia, possession of a firearm by

a convicted felon. In the first ground of his motion, Appellant complains that defense



                                             2
counsel did not properly advise him of his Fifth Amendment right to remain silent and not

testify in his own defense. He claims that if he had been properly advised of this right, he

would not have testified.      Appellant asserts that he was prejudiced by this alleged

ineffective assistance of counsel because during direct examination, defense counsel

elicited testimony from Appellant that he had prior felony convictions.            The Florida

Supreme Court has held that it is appropriate, common, and not deficient for defense

counsel to question their clients about prior felony convictions in order to preempt the

State’s anticipated impeachment of the defendant during cross-examination.                  See

Lawhome v. State, 500 So. 2d 519, 520 (Fla. 1986) (approving of the use of ‘“anticipatory

rehabilitation’ to ‘take the wind out of the sails’ of an attack on credibility or to ‘soften the

blow’ of anticipated inquiries or revelation expected to be damages to the credibility of the

witness.” (citing Bell v. State, 491 So. 2d 537, 538 (Fla. 1986)).

       Appellant argues, however, that the anticipatory rehabilitation by defense counsel

in this case amounted to a stipulation that effectively relieved the State of its burden of

proving Appellant’s prior felony conviction, which is an element of the charged crime and

not simply a matter of impeachment. Brown v. State, 719 So. 2d 882 (Fla. 1998), holds

that in a felon-in-possession of a firearm case, the defendant may stipulate to his prior

felony convictions to avoid having the State offer proof to the jury as to the nature and

number of defendant’s prior felony convictions.1 719 So. 2d at 889. However, if such a

stipulation is offered, Brown requires the defendant, outside the presence of the jury and




       1The State is permitted to place into the record proof of the defendant’s felony
judgments and sentences, but neither the aforementioned documents nor the number
and nature of the convictions are to be provided to the jury where a stipulation has been
made. Brown v. State, 719 So. 2d 882, 889 (Fla. 1998).


                                               3
after consultation with counsel, “to personally acknowledge the stipulation and his

voluntary waiver of his right to have the State otherwise prove the convicted felony status

element beyond a reasonable doubt.” Id. The records attached to the trial court’s order

do not include a Brown stipulation acknowledgement by Appellant. Thus, we remand for

the postconviction court to attach copies of the record showing that Appellant made a

Brown stipulation acknowledgement or to conduct an evidentiary hearing to determine

whether Appellant made and acknowledged a Brown stipulation.

                                      SLEEPING JUROR

       In the third ground of his motion for postconviction relief, Appellant alleges that a

juror fell asleep. He contends that he informed defense counsel of the sleeping juror, but

that counsel failed to make any objection or to seek removal of that juror. Appellant

argues that he was prejudiced because the sleeping juror missed Appellant’s testimony,

which allegedly supported one of Appellant’s defenses. Typically, a claim of ineffective

assistance of counsel for failing to object to a sleeping juror should not be summarily

denied. See McGraw v. State, 796 So. 2d 1205, 1206 (Fla. 4th DCA 2001) (“It is usually

improper to summarily deny a claim that counsel failed to act upon being informed that a

juror was sleeping during trial.”).

       In Virgo v. State, 120 So. 3d 23 (Fla. 4th DCA 2013), the Fourth District Court of

Appeal entertained an argument nearly identical to the one before this court. In Virgo,

the defendant alleged that: (i) he complained to his defense counsel that a juror was

sleeping; (ii) defense counsel advised him that the juror was merely resting his eyes and

that the trial court would not view an objection favorably; and (iii) due to the juror’s

continued inability to stay awake, the juror missed important testimony. 120 So. 2d at 25.




                                             4
Given those allegations, the Fourth District Court of Appeal reversed and remanded for

an evidentiary hearing. Id. (citing Reynolds v. State, 99 So. 3d 459, 481 (Fla. 2012)).

The State has commendably conceded error and agrees that an evidentiary hearing is

required. We reverse and remand for an evidentiary hearing on the sleeping juror issue.

      AFFIRMED IN PART, REVERSED IN PART, REMANDED FOR FURTHER

PROCEEDINGS.



PALMER and WALLIS JJ., concur.




                                          5
